Commissioner Bassett-"In making an amendment to that motion I want to suggest that the Bureau of Water Supply, Gas and Electricity, which is directly under the City administration, has made this arrangement with the well contractor, directing him to put down these wells along the Park slope in Brooklyn, and that Mr. Coler's powers merely extend to permitting it to be done in a certain place, he not having the power to refuse to have it done in some place. In other words, he perhaps might have been compelled by mandamus proceedings if he had not given the permission to do it in some place. Fourth avenue is surely not the right place to do so, because the proposed subway or pipe galleries or stations which are not yet definitely decided upon would make it very inadvisable indeed if test wells or permanent wells should go down anywhere in that avenue. I therefore move the amendment that another letter of the same tenor be sent to the Bureau of Water Supply, Gas and Electricity."

Commissioner McCarroll-"I do not see any objection. My idea was to draw out in more official manner than we had it the information and facts so that we might take the proper steps afterwards."

The Secretary was thereupon directed to send communications, as suggested above, to the Borough President and to the Bureau of Water Supply, Gas and Electricity.

TRAVIS H. WHITNEY, SECRETARY.

PROCEEDINGS OF

THE PUBLIC SERVICE COMMISSION

FOR THE FIRST DISTRICT,

FRIDAY, JANUARY 24, 1908.

TRIBUNE BUILDING, 154 NASSAU STREET,

BOROUGH OF MANHATTAN, CITY OF NEW YORK.

Present-John E. Eustis, Acting Chairman, Commissioners William McCarroll, Milo R. Maltbie.

(1)

Chairman Willcox was excused because of illness, and, on motion, duly seconded, Commissioner Eustis was elected Acting Chairman.

(2)

2879

The Secretary presented a communication from the State Civil Service Commission transmitting a resolution permitting the employment of John Schroder as Janitor for the Second Division Engineer's office at No. 2630 Broadway, at a compensation not to exceed $15 per month. The letter was ordered filed.

(3)

2691

The Secretary presented a communication from the Art Commission of The . City of New York transmitting the following resolution and returning the exhibits mentioned therein, with the exception of Exhibit 304-C:

CERTIFICATE No. 659.

Resolved, That the Art Commission hereby disapproves the designs for the tablets to be placed in the Borough Hall subway station, Brooklyn, represented by Exhibits "304-A," "304-B," "304-C," "304-D," "304-E" and "304-F," of record in this matter; and that the action of the Commission be certified, with return of duplicates of Exhibits herein noted, to Hon. William R. Willcox, Chairman, Public Service Commission for the First District.

The communication was ordered filed.

(4)

3050

The Secretary presented the following communication from Hon. Louis F. Haffen, President of the Borough of The Bronx, which was ordered filed:

NEW YORK, January 21, 1908. Hon. JOHN E. EUSTIS, Commissioner, Public Service Commission, No. 154 Nassau Street, City:

DEAR SIR-While the subject of proceeding at once with the letting of contract for the Broadway and Lafayette avenue sections of the Brooklyn loop route, so-called, is receiving the consideration of the Public Service Commission, I think that new construction of subways for The Bronx should have full consideration. As I have previously shown in communications addressed to the Public Service Commission, a comparatively small amount of money can be expended by the City in the Borough of The Bronx which would result in the extension of existing lines in sections of our Borough where additional transit is absolutely necessary. During the last year I made suggestions to the Public Service Commission to extend existing elevated over Westchester avenue to Pelham Park, over White Plains road to Wakefield and on Jerome avenue to Woodlawn Heights. It seems to me that these extensions, which would cost probably not more than twelve millions of dollars, ought to be provided before any other rapid transit work is undertaken. I understand that the so-called Tri-Borough route, the portion thereof in the Borough of Brooklyn being called the Fourth avenue subway, has been practically authorized and it seems to me under the circumstances that The Bronx ought to be provided for in advance of any further extension in Brooklyn, and if the practice followed in the case of large contracts for public improvements each as obtained at least in this Borough, namely, the spreading of the entire cost over the several years required for the construction, instead of charging it against the year in which the entire contract was authorized, the objection of debt limit might be avoided.

As the representative on the Commission living in The Bronx, I address this communication to you, and would request that you urge these views on your col.. leagues in the Public Service Commission.

(5)

Yours truly,

LOUIS F. HAFFEN,

President of the Borough of The Bronx.

3070

The Secretary presented an opinion of Counsel in answer to an inquiry addressed to him as to whether The City of New York is at liberty now to use, without first obtaining the consent of any other person, the two tracks now in course of construction, extending along Flatbush avenue, from Flatbush avenue extension to Lafayette avenue, and similarly the two tracks now in course of construction extending along Flatbush avenue, from Fourth avenue to Flatbush avenue extension.

In his opinion the Counsel said:

"On January 24, 1901, the Board of Rapid Transit Railroad Commissioners adopted certain routes and general plan for a rapid transit railroad in The City of New York. These routes and general plan having been subsequently duly approved and consented to, as required by the Rapid Transit Act, the Board, on July 21, 1902, entered into a contract with the Rapid Transit Subway Construction Company for the construction and operation of the railroad. On April 13, 1905, a resolution was adopted by the Board to modify the routes and general plan. So far as material to the question now under discussion, this modification was substantially as follows: That beginning at a point in the Borough of Brooklyn in Joralemon street, opposite the Kings County Court House, near the junction of Joraleman street with Fulton street, and running thence along Fulton street to the end of the route, at or near the intersection of Flatbush avenue with Atlantic avenue, there should be four (4) tracks (instead of two, as provided in the original contract); that these four tracks should be parallel and placed on the same level, except at the following points, where provision was to be made for connections with certain subways or tunnels which were expected to be thereafter constructed and to run as follows: (First) northwesterly under Fulton street to its junction with Joralemon street; (second) northwesterly from Flatbush avenue under the proposed extension of Flatbush avenue towards Manhattan Bridge; (third) northeasterly from Flatbush avenue under Lafayette avenue; and (fourth) southerly from Flatbush avenue under Fourth avenue; that at or near these points one or more additional tracks might be constructed as a part of the railway therein described, and that these tracks might be depressed below the remaining tracks as far as might be necessary to avoid grade crossings; and that along that portion of the route lying under Flatbush avenue there might be an additional or fifth track for use as a siding.

Subsequently, on June 9, 1905, the necessary consents and approvals to the modification of the contract having been obtained, the City, acting through the Board, entered into a contract with the Construction Company modifying the original contract substantially as provided in the resolution. This contract of modification provided, among other things, that

In all other respects the provisions of the route and of the general plan of construction set forth in the said contract for construction and operation shall be applicable to the portion of the route hereby substituted.

Thus, not only on principle, but by express terms, all the legal incidents of the original contract attached to the modified contract.

The contract of modification further provided that the amounts of the payments occasioned by the additional work and materials should be determined as provided in chapter 2 of the original contract, so far as such work and materials should be supplied in or about providing connections with subways which might be thereafter built under Fulton street, the proposed extension of Flatbush avenue, Lafayette avenue or Fourth avenue, including in the cost of such connections the

cost of constructing the approaches thereto, but that so far as such work and materials should be supplied in or about any other thing, in the contract of modification provided, then the amounts of the additional payments to be made to the contractor should only be one-half of the amounts determined, as provided under chapter 2 of the original contract.

I do not think that the fact that the construction company undertook to pay a part of the additional cost required by the modification of the original contract has any material bearing on the question presented, except possibly to enlarge the rights of the construction company. That the contract price for the construction of the Brooklyn extension was much less than the actual cost does not change the legal relations of the parties. The City's property rights in the subway are certainly no greater below the Brooklyn Bridge than above it.

The original contract contained this provision:

The City hereby lets the railroad to the contractor for the term hereinafter mentioned. The railroad hereby leased includes the railway constructed under the routes and general plan thereby prescribed by the resolutions of the Board adopted on the 24th day of January, 1901, together with the terminals, stations and other appurtenances whatsoever of the said railroad, but not including the equipment thereof. The railroad shall from time to time include any extension or addition required by the Board and constructed by the contractor, as provided in chapter 1.'

I am of the opinion that the question propounded by the Commission should be answered in the negative, and that the City is not at liberty to use, during the term of the lease to the construction company, without its consent, the tracks referred to in the resolution."

(6)

2723

The Secretary presented an opinion of Counsel in the matter of the claim for damages of Franklin L. Partridge because of the location by the Commission of a column for the elevated portion of the Rapid Transit Railroad on his premises on Broadway at or near the proposed extension of Two Hundred and Thirty-eighth street, stating that there has been a trespass, and that if the City would buy the property for street opening purposes it would relieve this situation. On motion, the letter was referred to Commissioner Eustis.

(7)

On motion, duly seconded, it was

2530, 2529, 2601

Resolved, That the following appointments be made from the Civil Service lists: