
    Rapid Transit Subway Construction Company and Cranford & McNamee, Incorporated, Respondents, v. Bird S. Coler, Individually and as President of the Borough of Brooklyn, and Desmond Dunne, Individually and as Commissioner of Public Works of the Borough of Brooklyn, Appellants.
    Second Department,
    July 23, 1907.
    Municipal corporations — authority of rapid transit commissioners of . city of Mew York — right to allow use of streets.
    The rapid transit commission of the city of New York has power to authorize a suh-contractor engaged in constructing á subway to occupy streets crossing the line of construction so far as is necessary for the prosecution of the work; a permit by the- borough president is not required.
    Although this power is not specifically, conferred, it-'-is incidental to the specific powers of the commission.
    Appeal by the defendants, Bird S'. Coler, individually, etc., and another, from an- order of the Supreme Court,-made at the Kings County Special Term,and entered in the office- of the clerk of the county of Kings on the 21st day of January, 1907, continuing during the pendency of the action a temporary injunction restraining the defendants, their employees, etc., from removing or interfering with certain tools and equipment of the plaintiffs.
    
      James D. Bell [William B. Ellison with him on the brief], for the appellants.
    
      George W. Wickersham, for the respondents.
    
      George L. Rives, for the Board of Rapid Transit Railroad Commissioners.
   Hooker, J.:

The question for our determination, presented by the record at bar, is purely one of power. The plaintiff-Rapid Transit Subway Construction Company has contracted with the rapid transit commission to build a certain part of the systenl of subways now under construction, and the plaintiff Cranford & McUamee, as a sub-, contractor of its coplaintiff, has used, with the consent and pursuant to the permit of the rapid transit commission, parts of certain streets in Brooklyn which cross the street under which the construction is now progressing; such use, it is fairly to be assumed from the affidavits, being reasonably necessary for the prompt and proper progress of the work. The occupation of such cross streets is without the permit of the borough president of the borough of Brooklyn, or of its commissioner of public works. These latter officials have threatened to remove the plaintiffs from the cross streets occupied by them for such purposes. This action was com.menced to restrain such removal, and a temporary injunction has been continued during the pendency of the action. The defendants have appealed to this court. The'question is, have, the plaintiffs a right to occupy the streets they are in, for the purposes for which they are using them, without the permit of the usual borough authorities; or, in other words, is the permit of the rapid transit commission sufficient?

The Rapid Transit Act (Laws of 1891, chap. 4) bestows the most general grant of power upon the rapid transit commission when it provides (§ 1) that it “ shall have and exercise the specific autliority and powers hereinafter 'conferred, and also such other and necessary powers as may be requisite to the efficient performance of the duties'imposed upon the said board by 'this act.” Under this act (§ 4) the board .was required to determine whether or not “ it • is for the interest of the public and of the city in which it is appointed, tliat a rapid transit railway or railways for' the conveyance and transportation of persons and property should be established therein,” and so “ to determine and establish the route or routes thereof and the general plan of. construction.”' Section 5 required the board to transmit, the plans and conclusions it adopted to the common council óf the city. If approved by the common council., andby.any other local authority in which the exclusive supervision of any street, road, highway :or avenne which was to be. used under the provisions of the law should be vested, and if a majority of property .owners consented.thereto, or, failing that, a commission appointed by the General'Term, now the Appellate Division of the Supreme Court, should report in favor of the construction of the railroad, and that report should be.confirmed, then by section 6 the board was required to prejiare detailed plans and specifications for the construction of such railway in accordance, with the general plan of construction. . “ Stations and .station approaches/’ section 6£ pro-, vided, .“may be under or over streets of the route or .cross streets, and.the board of aldermen, or other legislative body, of, any such city shall have power to regulate by- general or special ordinance or resolution, the erection, alteration and maintenance upon or in coin nection with any building fused wholly or in part for station purposes, or approaches, of any and all structures or parts of structures extending over the whole or an) part of any sidewalk or sidewalks. adjacent thereto.” The board was further empowered from time to time' to alter such detailed plans and. specifications/ “ but always so that the same shall, accord Ayitli the general plan of construction; but whenever a cqntract shall have been: made for the construction'' of any railway herein provided for, no such alteration shall'be made, by the board without the consent, of ' the contractor and his sureties, except as liberty shall have been reserved in such contract by said board for such alteration.” For the purpose of facilitating construction “ and to diminish the period of occupancy of any street for the transportation of material,” it was provided in section 33 that any contractor acting under a contract pursuant to this act might, with the approval of the rapid transit board, “lay upon or over the surface of any street, temporary tramways,, to be used only for the removal of excavated materials or the transportation of material'for use in the construction.” In 1894 the act was amended by adding sections' beginning with section 34 (Laws of 1894, chap. 752), and later the act was amended (Laws of 1900, chap. 616) so as to extend its operation to the whole of the. city of New York. The amendments of 1894 provided that the rapid transit board should cause the question whether the rapid transit railway should be constructed by the city and at the public expense, to be submitted to general vote at the ensuing general election; and that if the people should determine by vote that the railway should be constructed for and at the expense of the city, the board should proceed to make contracts for construction, the funds to be supplied by the board of estimate and apportionment. The scope of the amendments of 1894 was greatly to increase the. powers and duties of the "commission. The people determined at the polls in 1894 that the construction should be for and by the municipality, and thereupon the commission became charged, not only with the duty of laying out routes andt awarding privilege of building the railway to the highest bidder, but of actually building i the lines itself and of supervising their operation.

It is true that by sections 383 and 391 of the charter of the city of New York, the borough president has cognizance and control of the issue of permits to builders and others, to use and open streets, and to those who seek to interfere with the pavement or disturb the surface of streets for the usual purposes for which these acts are done, and.it is-likewise true that there is no specific language in the. Rapid Transit Act which, in terms, gives to the rapid transit commission the power to issue permits for the occupation of cross streets by those actually engaged in the construction of the subway for necess'ary purposes. We think, however, that.the whole tenor of the act is to endow the commission with all powers necessary to effectuate the speedy, proper and adequate construction of the subway: ’ The: • ■commission is created and is recognized as a distinct municipal ágency whose- acts, authorized, by specific enactment or -by necessary implication, are as binding upon the municipality as authorized acts . of the ordinary city officials. As we have observed, the Legislature of 1894, in amending the act by the addition of sections 34 and following, lias imposed upon the commission larger obligations and, incidentally,, larger powers. By section 34 it was provided that in case the people should have determined by vote that a rapid transit railway shquld be constructed for and at the expense of-the city,, it , should be the duty of the board either .to proceed with the construction of such railway or railways, and to provide for the operation of ' the same, or to change arid' modify routes, or to adopt additional ones, etc;; that as soon as the requisite consents shall have been obtained .for any rapid transit failfdad and the detail plans and specifications prepared as provided in section 6, “ the said -board,, for and in behalf of said city, shall enter into a contract with any person, firm or corporation, which in the opinion of said board, shall be best qualified to fulfill and carry, out said-contract, for the construction of such road or . roads upon the routes and in- accordance with the plans, and specifications so adopted, for such sum or sums of money, to be raised and paid out of the treasury of-said city,, as hereinafter provided, and on such terms and conditions, not • inconsistent with the- aforesaid plans and specifications, as said beard shall determine to be best for. the public interests. * -*: * The said board may by any such contract determine when and how ■ the work of construction of the rapid transit railroad or railroads included therein shall proceed.” Section 39† provides : “ Bor the . purpose of constructing or- operating any road ‘ for the "construe- ■ tion and - operation of which- a contract shall have been made" by the -board of rapid transit railroad commissioners, including necessary stations and station, approaches, or for the purpose of operating or securing the operation' of the same * * ■ *',” the board, for and in behalf of the city, may acquire by" conveyanee or by condemnation “ any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of, owners or abutters, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference of right of interference.” By section 38 the board is empowered to agree with the contractor'in any such contract “ upon changes in and modifications of said contract, or of the plans and specifications upon which said road or roads is or are to be constructed,” but with the limitation that the routes and general-plan provided for in section 5 shall not be changed or modified without the consent and authorization provided for in that section, nor. shall the minimum rental to be paid to the city for the use of the road be reduced beyond that provided for in the statute.

It is apparent from an examination of the sections to which we have referred, and of other provisions contained in the act, that it was the intent of the Legislature to confer upon the commission all of the necessary powers properly to construct the subway, and this, without the concurrent action of. the ordinary municipal authorities, except where such action was specifically required by the act. The power to grant a valid permit to a contractor or subcontractor, to occupy an adjacent part of cross streets where such occupation is necessary in the prosecution of the work, is, we think; an incidental power which the commission possesses under the act; and the mere fact that this specific power is not among those enumerated . by the Legislature does not alter the case, for if the act had attempted-in detail to enumerate all of the specific powers the commission might have, it would necessarily have partaken of the prolixity of a legal code.”

It is urged on behalf of the appellants that subdivision 5 of section 24 of the act reserves to the ordinary municipal authorities the right to grant permits for the occupation of streets, such as the plaintiffs are indulging in. That subdivision provides: “ No such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, éxcept such as may have been designated for the route or routes of such railway, .arid except such temporary privileges as the proper authorities may grant to such .corporations .to facilitate such construction.” •. This’ subdivision deals with the right of a .corporation which has bid for the right to build the railroad itself, under the provision in the act of 1891. The act, as it 'was passed in that year,-did not, in any wise, contemplate the construction Of the. railway by and for the city, and the powers of the commission under the original act were mainly the laying out of a route arid-the designation of a corporation organized for that purpose under the act which might construct the railway. Under-the provision of. the- amendment of 1894, however, the subway in whose construction the plaintiffs aré how assisting, is being built for and by the. city, and the rapid transit commission is at the head of the enterprise,, pursuant to the larger powers granted by the amendments, of 1894. It must' be apparent, therefore, that the provisions of subdivision 5 of section 24 bu-t related to a corporatioii organized under the act for the purpose of building the railway itself, and cannot by any implication whatever refer to the rapid transit commission, which is what such .a corporation never could lmve been, namely, a properly constituted and distinct municipal agency. ' - ' ■

; The ■ order denying the injunction during the pendency of the action should, therefore, be affirmed. , ; -.

Hirschberg, P. J., Woodward, Jenks and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and. disbursements. 
      
       See Laws of 1894, chap. 752.— [Rep.
     
      
       See also Laws of 1900, chap. 616, and Laws of 1904, chap. 564.—[Rep;
     
      
       See Laws of 1895, chap. 519, and Laws of 1904, chap. 564.—[Rep.
     
      
       See Laws of 1902, chap. 542.— [Rep.
     
      
       See Laws of 1895, chap. 519; Laws of 1896, chap. 729, and Laws of 1904, chap. 564.— [Rep.
     
      
       See Laws of 1901, chap. 466.— [Rep.
     
      
       See, also, Laws of 1900, chap. 616, and Laws of 1902, chap. 544.— [Rep.
     
      
       See Laws of 1901, chap. 587, and Laws of 1904, chap, 564.— [Rep.
     
      
       See, also, Laws of 1895, chap. 519.— [Rep.
     
      
       See, also, Laws of 1892, chap. 556.— [Rep.
     