#### Theodore Dieterlen, Plaintiff, *v.*Jesse W. Powers et al., Defendants.

(Supreme Court, New York Special Term,

August, 1898.)

Contract — Construction of— Unlawful demand of city authorities.

Where a building contract provides that a contractor shall pay for “vault space and any other city charges that may arise during the. construction of the building,” the contractor-is not required to comply! with an unlawful demand of the commissioner of public works or to litigate questions arising between the city and the owner on the application for a permit. He is only bound to pay for the permit when issued.

The plaintiff, a builder, brought the action, by foreclosure of a mechanic’s lien to recover the final payment for the construction of a building for the defendant. .. . ;

The defendant set up as a counterclaim damages for the failure of'the plaintiff to complete the building within ..the time agreed upon, occasioned by his refusal to obtain- from the commissioner of public- works of the city a,“ permit ” to construct and maintain an areaway excavated in the street fronting the building.

The provision of the contract and the facts relative to the procuring of space for vault and areaways appear in the opinion.

Earley & Prendergast, for plaintiff.

Hatch & Wicks, for defendant Powers.

Nash, J.

The principal question at issue arises under the provision of the contract requiring the plaintiff to pay the compensation to the city for the vault space required in .the construction of the building. ■,

*493Under the caption of *“*permits ” in the specifications it is provided that, *“*Except when hereinafter otherwise stated, the contractor will pay for water for building purposes, vault space, and any other city charges that may arise during the construction of the building.”

The plans and specifications required the construction of a vault space for a coal vault, for which up to the time of the making of the contract between the parties, the city had demanded a compensation of seventy-five cents per superficial foot, and also an area to be constructed on;One Hundred and Twenty-fifth street, for which no compensation had been required to be paid to the city up to that time. The distinction being that an excavation in the street covered by an arch or a closed covering of iron plates with bull’s eyes or patent lights was regarded as a vault to be used as such with the. building, "and a space on the side or rear*of the building not covered, or covered with a grate or perforated iron plates used for ventilation or light, was regarded as an area, for the construction of which no charge was made by the city.

The commissioner of public works required the payment of $2 per foot for the coal vault space instead of the seventy-five cents previously charged, which was paid by the contractor during the masón work, and the commissioner also demanded ,$2 per foot for permission to construct the areaway, so" called.

A contention arose as to which of the parties should obtain the permit for the construction of the area, each contending that it should be done by the other, and it is upon the refusal and neglect of the plaintiff to obtain the permit, and go on with the work, that the defendant Powers bases his claim for damages occasioned by the delay, and his expenses incurred in his contest over the! matter with the city.

The rights of the parties are, I think, settled by the terms of the contract in favor of the plaintiff.

The specifications required the plaintiff to pay for *“*vault space and any other city charges that may arise during the construction of the building.” He was not required specifically by the terms of the contract to procure the permit, but to pay the charges therefor. The fact' that he was to pay the compensation for constructing the areaway, does not, it seems to me, imply that he was to settle the questions which might arise between the owner of the premises and the city, as to the terms and conditions upon which the permit should be issued and the amount which should be paid *494therefor. ■ The permit runs to the owner. The ordinance of the city makes it the duty of every person for whom any vault may be constructing, to procure the. same to be measured by one of the city surveyors, and to deliver to the eommissione'r of public works a certificate of such measurement before the arching.of the vault shall be commenced. The rules of the department of public works require that “ Where applications for vault permits are made, such applications shall be in all cases accompanied by a. plan, drawn upon a scale of one-fourth of an inch to one foot, showing the whole area to" be built upon, including the walls, and designating the open area, if any, and also the area to be used exclusively for stairways; and in case there shall be any fire hydrant, sewer basin, manhole or stopcock box in front of the premises where the vault is to be excavated, the position of such hydrant, sewer basin, manhole or stopcock box shall be shown on such plan.”

The permit (“ as shown by the one in evidence ”) is granted upon condition that the person, or persons to whom it is granted will in all respects comply with the corporation ordinances relative to vaults, etc., the restrictions of which and the limitations of the permit being particularly stated and set forth therein. The permit is conditioned further that the party procuring ,it agrees to keep the pavement affected by the construction of the vault in .good condition for the period of one year from the date of the filing of the surveyor’s certificate upon completion of the work. The permit is also subject to revocation at any time by the commissioner of public works, when, in his judgment, the space occupied by the vault may be required for any public improvement, or upon any violation of any condition thereof.

It follows, I think, that all these matters, and as well the amount which may be, lawfully demanded for the. permit, whether the space required shall be regarded as a vault-to be paid for as such, or a space to be constructed and maintained as an area, are questions to be determined between the owner and the. city.

The plaintiff was, by the contract, required to pay for the vault space whether it was seventy-five cents a foot, which had been charged up to the time of the making of the contract, or any other sum which the city could lawfully charge. But neither the letter or the spirit of the contract required the plaintiff to comply with an unlawful demand of the commissioner of public works, or to litigate questions which might arise between the owner and the city upon the application for the permih

*495The building was substantially completed on the 6th day of November, the day the work on the areaway was stopped by the police, and but for this it would have been fully completed within the time stipulated, allowing for delays which the plaintiff was not responsible for, and which would have been and, in fact, were allowed by the architect in his certificate.

I am of the opinion, therefore, that the damages set up by the defendant as a counterclaim, viz.,

“ Money expended for counsel fees............... $500 00

“ Time personally expended..................... 1,000 00

“ Rents lost through plaintiff’s failure to complete the

“contract............................... 2,580' 00 ”

should not be allowed.

Ordered accordingly.