New-York tribune., 1903-02-25
THINKS CITY CAN CHARGE RENTAL
Justice Laughlin Says Rapid Transit Board
Should Have Made Agreement,

Justice LaughIin, o: the Appellate Division VINO
last week concurred in the opinion OF justice
Hatch. giving John Il. Mcdonald verdict IN the
n1andarlus action brought to compel ControlleF
t;rout TO nav him 100000 for conduts placed in
the side walls of the subway. the ground that
they are part of the construction rather thah
equipment, says in his opinion. that 1t ooos llot
appear that the Rapid Transit Commissioners urea
to obtain from Mr.. Mcdonald agreement 10
pay a fair value for the and occupation OF
the conduits Mr.. Laughlins opinion is in part
follows:
During the argument it occurred to a;o,odt me; Ddt
the point made by counsel for the reSpoiiu.
ent that it would be inequtable TO decne tll[,. ,
this extra work construction. the entlre cost
that if the contractor is to be permitted to use
these conduits without paying rental to the cry.
on all construction originally conempate1 10 pe @
made m ny the ag Gtg' m snd o" aed we remendous out
lay of money, it having been his duty undef ioF aIe
TO construct all conduits. that might be necessary
for carrying the electrical cables as paIt oL ne 4.
equipment and at his own cost and eIiotnseb fn been
would seem that this question should nay nafe t9sii
road Commissioners before consenting 10 cta,is +
of the plans. rather before conSehtIns 10
we Ia he permitted to use the con-
duits constructed in the side walls free OIL specil
OF course, if the commissioners deemed the con con
structon OF these conduits in the side VANS va @ m
justify them in paying the entire expense nt.i
therefor. they only had the power but mink @
they might properly have consented 10 lhe coI
struction the expense of the city but 1t does noI
appear they endeavored to obtain from ttle
reator agreement 20 pay the falr Na'luS oI tiIe
use and occupation. However this may De. . .IIt
propriety the action Of the commissioners Is hoI
presented for review.
Further along in his opinion Justice Lapshln
says:
1t appears that the expense OF providing suitable
conduits or conductors for the electrical cables
which was to be borne by the contractor would pe
very large. and idea of this expense may oe
Inferred from the fact that the contractor IIoo-
ceeded with and performed nearly one-halt or tilS
work of inserting conGuits in the side walls me me
aggregate cost which. according TO the alI't ~
OF the chief engineer of the board. Will he Si9oou
before obtaining the formal approval OF lne coiIl
missioners to a change of the plans or ARRIVING az
an agreement as to who to pay therefor, afu
during several months he proceeding u'loel d
resolution which required him TO bear the eutlie
thereof.
IT is therefore just that IN being saved TINS large
exnenditure of money and greater piolecuoH
against the liability of accidents he should pay Il
rental 10 the city for the use of these cohdulIS.
and II is right that the city should pay the CSt
of construction. since they become It's propetetH,
pernanentv affixed in the construction afG useLui
bevond the period of the realtors lease Inc coti-
tractor in dealing with the commissioners, IS
chargea ble with knowledge of the lllnlta -lJiS vi
their powers and it seems 10 me tElat tne! hdNe
not bv failing have understanding Win liiii
with respect paying rental. foreclcsel Ihe clt
from asserting a right TO recover ne fair value VI
the use of these condultS