#### The City of New York, Respondent, *v.*The Sicilian Asphalt Paving Company, Appellant, Impleaded with The Consolidated Telegraph and Electrical Subway Company, Defendant.

First Department,

July 7, 1911.

Municipal corporation. — contract to replace pavement on notice— ■ when contractor not liable to city on judgment for personal injuries obtained against it.

A clause in á municipal contract for the grading and repaving of a street providing that during the performance of the work the contractor shall place proper guards around the same for the prevention of accidents, etc., and will indemnify the city against and from all suits and actions brought against it by reason of any injury to the person or property of another resulting from negligence in the performance of the work, or in guarding the same, does not render the contractor hable over to the city on a judgment for personal injuries recovered against it by a per-son who was subsequently injured by an opening in the pavement made by an electrical subway company, although the contractor neglected to restore the pavement on notice to do so from the city. This, because under the clause the contractor only assumed said risks during the performance of the original work.

JSTor is tile contractor hable over to the city under a clause which requires him to restore the pavement over ah openings made by other corporations after notice to do so from the city, although he failed in that obligation after notice. This, because the damages to the city by reason of said judgment cannot be said to have been within the contemplation of . the parties, and the remedy of the city against the contractor on the failure to do the work was to do it itself, or by another, and to collect the costs thereof from the contractor. The contractor’s undertaking to make repairs when notified to do so by the city is not an assumption of the city’s obligation to the public, to maintain the street in proper condition, and in this respect differs from the obligations of a public service corporation which agrees to keep a portion of a street in repair.

McLaughlin, J., and Ingraham:, P. j., dissented, with opinion.

Appeal by thé defendant, The Sicilian Asphalt Paving Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1910, upon the decision of the court, rendered after a trial at the New York *818Special Term, overntling the said defendant’s demurrer to the complaint on the ground that the complaint does not state facts sufficiént to constitute a cause of action as to said defendant.

*W. Lester Olenney [.Bertrand L. Pettigrew*with him on the brief], for the appellant.

*Terence Farley,*for the respondent.

Scott, J.:

The defendant The Sicilian Asphalt Paving Company appeals from an interlocutory judgment overruling its demurrer to the complaint.

The complaint sets forth a Contract between the city of New York, and the appellant for the grading and repaving of the roadway of Forty-fifth street, from Tenth to Eleventh avenues in the city of New York. The work of repaving was completed and accepted on June 29, 1904. Thereafter a permit was issued to the defendant Consolidated Telegraph and Electrical Subway Company to open said street for the purpose of laying a trench across it. It is said, although not material to this appeal, that the subway company agreed to hold the city harmless from any injury that might occur to persons or property in consequence of said opening; that the appellant was notified of the issuance of- said permit and consented thereto, with the understanding that appellant would restore the pavement at the expense of the subway company when the latter' had refilled the trench. It is alleged that on the 30th of January, 190Í, the appellant was notified (by whom it is not stated) by a written notice to restore the pavement over the openings made by the subway company, but failed to do so, whereby the said pavement was allowed to be and remain in an open, defective' and dangerous condition from the time of the excavation up to. and after June 9, 190†. The complaint then set’s forth the particulars of an accident which happened to one Antonucci on June 9, 1901, in consequence of the defective condition of the pavement; his subsequent action against the city for damages; notice to the appellant to come in and defend; its refusal to do so, and the recovery of a judg*819ment by said Antonucci, and its payment by the city. The relief demanded is that the city recover from' appellant the amount of the judgment so paid. If the defendant is liable over to the city, the judgment in the Antonucci case is, under the admissions .implied by the demurrer, conclusive upon appellant as to the happening of the accident, the amount of damages and the absence of contributory negligence on the part of the person injured. The plaintiff relies upon the following clauses in its contract with appellant: “ (B) The contractor will furnish all the labor and materials at his own cost and expense, necessary or proper for the purpose, and in a good, substantial and workmanlike manner, and in strict accordance with the specifications herein contained or hereto attached, regulate,, grade and pave or repave, with asphalt pavement, on the designated foundation, the street above mentioned, and set and reset such curbstones, heading stones, etc., as may be necessary, all as herein provided, and maintain said pavement in good condition to the satisfaction' of the President for the period of five years from the final completion and acceptance thereof; 3⁄8 3⁄8 3⁄8 (J) 3⁄8 * 3⁄8 During the performance of the work herein set forth he will place proper guards upon and around the same for the prevention of accidents, and at night will put up and keep suitable and sufficient lights, and he will indemnify, and save harmless party of the first part against and from all suits and actions, of every name and description, brought against them, and all costs and damages to 'which it may be put on account, or by reason, of any injury or alleged injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from any improper materials used in its prosecution, or by or on account of any adt or omission of the contractor or his agents, and that the whole or so much of the moneys due tt> the contractor, under and by virtue of this contract, as shall or may be considered necessary by the Comptroller of the City of New York, shall and may be retained by party of the first part until all such suits and claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the Comptroller. (M) The contractor shall immediately repair *820and make good to the satisfaction of the engineer any disintegration, cracks, hunches, levees or settlement or any depres-. sion in the pavement that shall measure more than three-eighths *(%)*of an inch from the under side of a straight edge four (4) feet long, which shall occur at any time during the period of five years from the date of the acceptance of the whole work under the contract, when notified so to do by the President by a written notice to be served oh him, either personally, or by leaving said notice at his residence, or with his agent in' charge of the work; 3⁄8 7⁄8 * During the period of maintenance the contractor, shall within five (5) days after the receipt of notice so to do, restore the paVément over all openings made by corporations or plumbers for making new service connections, or repairing, renewing, or removing the same, and over all trenches made for carrying sewers, water or gas pipes or any other sub-surf ace pipes or conduits, for the building or laying of which permits may be issued by the President 7⁄8 3⁄8 . 7⁄8_ gvf) The measurement shall be taken after the laying and setting of the pavement and the completion of the work, and the aforesaid prices shall cover the furnishing of all the different materials and all the labor; the maintaining of said pavement in good order as often as may be required by the terms hereof,' or as the President shall direct, for the period of five years, and the performance of all the work mentioned in this contract and specifications.”

We consider that it is entirely clear that the provisions pf clause J, above quoted, do not sustain a cause of action upon the facts pleaded. That clause is limited to the precautions, to be taken by appellant, and the risks to be assumed by it *during the performance of the work,*which might well be held to cover work performed in making repairs, as well as in" originally laying the pavement, but cannot well be extended, by any fair construction of the language, to cover an assumption of risk while no work was in progress. If the plaintiff can recover at all it must be under that provision of clause M which requires the contractor (appellant) within five days after the receipt of notice so to do to restore the pavement over all openings made by corporations or plumbers for certain purposes, and over all trenches for which permits may be issued by the president. *821The complaint alleges that appellant failed to comply with this provision of the contract. For such failure the city undoubtedly was not without remedy, such, for instance, as doing the work itself, or by another contractor and collecting the- fair cost thereof from appellant, but it is not so clear that the damages now sought to be recovered can be said to have been within the contemplation of the parties.^ The case at bar differs essentially from those in which á railroad company, in consideration of a franchise or license to use a public street, has agreed to *keep in repair*a portion-of the street. In such cases it has been held that the company “in effect contracts to perform that duty to the public in the place and stead of the .municipality, and the way is given over to him for that purpose, and he takes it into his care and charge therefor, and his failure to perform his contract is a. failure to do that duty, and the damages which naturally and proximately result from nonperformance are all the damages which naturally and proximately fall upon the corporation from the duty not being performed.” *(City of Brooklyn*v. *Brooklyn City R. R. Co.,*47 N. Y. 475.) In such a case as that considered in the case just cited, the person injured, as was pointed out in the opinion, would- have a direct action against the company who had undertaken to keep the street in repair. . In the present case there is no undertaking on the part of appellant to “keep the street .in repair” during the five years succeeding the completion of the original paving, except as it may from time to time be notified to make specified repairs. What the appellant undertakes is that it will make repairs when notified so to do by the city’s representative. This falls far short of assuming the obligation to the public of maintaining the condition of the street. That duty still rests primarily upon the city. *(O’Keeffe*v. *City of New York,*173 N. Y. 474.) The case with which we now have to deal is governed by the principle laid down by the Court of Appeals in *City of Rochester v. Campbell*(123 N. Y. 405). In that case a statute required the abutting owner to keep the sidewalk in front of his property in repair, and authorized the public authorities to repair it at his expense, if after notice he failed to repair it. An owner did fail in this duty and a wayfarer was injured and *822recoyered judgment against the municipality, which sought to . recover over from the property owner. Chief Judge Ruder, wrote a comprehensive opinion covering, the whole subject and' enumerated the cases in which the city might have recovery over, including a case where one had contracted with the mxmicipality “for keeping its street in repair.” He pointed out that recoveries in such actions were allowed only where the wrongdoer is responsible generally to all who are injured by his act. *“*In other words the municipality, by. payment, becomes practically subrogated to the cause of action against the tort feasor which the injured party originally had.” He then points out that the object of the statute then under consideration was not to benefit the traveling public, but to furnish to the municipality the means of discharging its duty to keep the streets in repair. This *we*think fairly and fully expresses the purpose of that clause of the contract upon which alone, if upon any, the plaintiff can recover. The appellant did not create the obstruction which led to the accident, and it had ■entered upon no undertaking to *keep the street in repair.*It had only agreed to repair the street when called upon and ■ thus enable the city to fulfill its own primary obligation to the public. As between the city and the appellant the contract as to repairs does not differ essentially ‘ from the very common covenant on the part of a landlord to make repairs. Concerning such a covenant it was said by this court: “A contract to repair does, not contemplate, as damages for the failure to keep it, that any liability for personal injuries shall grow out of the defective condition of the premises; because the duty of the tenant, if the landlord fails to keep his contract to repair, is to perform the work himself and recover the cost in an action for that purpose. 3⁄8 7⁄8 * The tenant is not. at liberty, if the landlord fails to keep his contract to repair the premises, to permit them to remain in an unsafe condition and to stay there at the .risk of receiving injury on account of the defects in the premises and then recover as for negligence for any injuries that he may suffer.” *(Schick*v. *Fleischhauer,*26 App. Div. 210.) This was the position, as we think, in which the city found itself when appellant refused to respond to the notice to repair. It might have made the repairs at appel*823lant’s expense, but it could not permit the dangerous condition of the street to remain until an accident happened, and then insist upon charging the whole damage upon appellant.- That was not within the contemplation of the contract •

The judgment appealed from must be reversed and the demurrer sustained, with costs and disbursements, with leave to plaintiff to amend its complaint within twenty days upon payment of costs in this court and the court below.

Claree and Dowling, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.

McLaughlin, J.

(dissenting):

I am unable to concur in the opinion of Mr. Justice Scott for the following reasons: Under the appellant’s contract it was obligated, after putting down the pavement, to maintain it in good condition for a period of five years. The maintenance included (a) the repairing of such natural defects as might appear, *■ e. g.,*cracks, depressions, etc., and (b) the restoring of the pavement after it had been removed with the consent of the city for certain specified purposes... The appellant was not obligated to perform any of the work speci fied under the maintenance clause until notified by the city to do so, and where the defect was caused by the removal of the pavement with the city’s permission, this had to be restored within five days after notice given. The complaint alleges that in January, 1901, the appellant was notified to restore the pavement where it had been removed by the defendant Consolidated Telegraph and Electrical Subway Company, and up to June 9, 1901, it failed to comply with the notice or do any part of the work required, or take any precautions whatever to prevent persons lawfully using the street being injured. On the day last named a person rightfully using the street was injured on account of the defect and subsequently recovered a judgment for $2,000 and costs against the city. The appellant had due notice of the commencement of the action and was afforded an opportunity to defend the same. This it refused to do, and the city, having paid the judgment, seeks in this, action-to recover from the appellant the amount paid.

*824. There is a primary duty resting upon the city to keep its streets in a condition reasonably safe for all of the purposes to which they may be lawfully put, and this duty it cannot, as against third parties, delegate to another. *(People ex rel. Markey v. City of Brooklyn,*65 N. Y. 349; *City of Brooklyn*v. *Brooklyn City R. R. Co.,*47 id. 475.) But a contractor may, for a valid consideration, agree with the city to keep a street in repair, and if he does so he thereby assumes, at least so far as the city is’ concerned, that obligation; and if he fails to do so, he at once becomes liable to the city for any damages that may be recovered against it resulting .from his failure. If an injury be sustained by a person lawfully using the street, and by reason of that fact he has a recovery against the city, then it may — proper notice of the action having been given and an opportunity , afforded to defend the sanie — recover from the contractor the amount which it has to pay. *(City of Brooklyn*v. *Brooklyn City R. R. Co., supra; Lowery*v. *Brooklyn City & Newtown R. R. Co.,*76 N. Y. 28; *McMahon*v. *Second Ave. R. R. Co.,*75 id. 231; *Schuster*v. *Fortysecond St., M. & St. N. A. R. Co.,*192 id. 403.)

It does not need the citation of authorities to sustain the proposition that where one, for a valuable consideration, undertakes to keep a public street in repair and fails to perform, he thereby makes' himself, liable for whatever damage the city may sustain by reason of his failure. The contract in suit provided that the appellant should keep the pavement *‘ ‘*in good condition ” for the period of five years and that “ during the period of maintenance the contractor shall within five (5) days after the receipt of notice so to do, restore the pavement over all openings made by corporations or plumbers for making new service connections, or repairing, renewing, or removing the same, and over all trenches made for carrying sewers, water or gas pipes or any other sub-surface pipes or conduits, for the building or laying of which permits may be issued by the President.” The complaint alleges that at the time stated thérein, at the special instance and request of the Consolidated Telegraph and Electrical Subway Company, the president of the borough of Manhattan issued and granted to it permission to open the pavement across the street covered by the appel*825lant’s contract, which permission was granted after due notice to the appellant, and with its consent, and upon the express understanding that it would restore the pavement. After the opening had been made the city gave the notice required by the contract to the appellant to restore the pavement. It failed to do so and by reason of that fact the city was subjected to damages.. Of course, it could have made the repairs itself, but having contracted with the appellant to do so, it had aright to rely upon the contract, and in case it was subjected to damages for not keeping the street in proper condition, look to the appellant for whatever it had to pay. This is precisely what occurred, and upon the facts alleged I think the complaint states a cause of action, for which reason the judgment should be affirmed, with costs, with leave to the appellant to withdraw its demurrer and answer on payment of costs in this court and in the court below’.

Ingraham, P. J., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.