New-York tribune., 1909-12-31

normal growth os the population in
Queens. The city now also has the op-
portunity of ascertaining which is right,
its own engineers and experts or those
of the Pennsylvania Steel Company, in
the dispute as TO whether the contractor
fulfilled the terms of the contract and
specifications.
''If the bridge cannot carry the weight
it was designed to carry, some one has
blundered If the steel company has
blundered, il should not be paid IN full
for its work and the city should not
surrender its right to sue for any dam
ages which might accrue through acci-
dents due to weakness caused by such
blunders.
THE victory lies in the fact that ii has
been decided and the precedent estao-
lished that the taxpayers have right
to seek and that they will be sustained
by the courts in legal action to restrain
the acceptance of a public work where
there is reasonable and actionable doubt
that such work has not been done ac-
cording to contract, and where the cues
ton of the public safety is involved
TEXT OF COURTS OPINION.
The full text of Justice Dowling's de-
cision is as follows:
This is an application made by the PLAIN
tiff for an injunction pendente lile restrain, IN
Mayor Controller ana Chamberlain OF the
CITY of New York. from making payment
of the amounts certified by the Deparlisaenii seni
of Bridges 10 the Controller as the nnai
payment due from the city TO the fenn-
syivania Steel Company. under the con- con-
tracts for the construction OF the steer
superstructure of the Queensboro Brloge.
ii is the contention of the plaintlh that
the officials in question are about 10 Goli, GnaI
NIT an illegal act by making such nhas
payment, which amounts TO the sum oI
sISS 464 IL. The contention is based on the
fact. which appears to be suihclentS tSat the
lshed by the moving papers, that me
Queensboro Bridge, as constructed Has iot
a sufficient weight carrying capacty 10
10 he met and that 1t cannot sa1ely pear
the loads and stresses originally lhtenoed
to be placed upon the competed sel ~. {.
This applies particularly to the inapllnty ma ,a
safely TO run elevated railroad trains over
the said bridge, as contemplateo, ana 10
the inclusion in the completed structure
Of many millions of pounds of useless
steel and concrete which Will nave 10 pe
removed in order to enable the moalHeo
conducted on this bridge. 1T is apparent
from the plans and specifications that the
bridge was intended to be used' III
very large measure, for the transportation
over il of passengers in cars ana Tor tue
passage of vehicles, and that the usS
by foot passengers of such large anu
eXnensive structure was subordinate TO
the other two uses. which were the PrIn-
cfpal purposes sought to be subserVed py
II is not contended that the contractor
has not furnished the material for which
payment is sought; nor r. tat ba one me 1 Rut if
is urged that the contractor Should not
receive final payment, for the reason lhat
such action will remove the only oppor-
tunity which is left of testing, in a proper
action. the responsibility for the defects'
weaknesses and shortcomings which ap-
parently exist in the work.
Serious questions are involved ana ue-
rnand careful consideration as TO the re-
sponsibity for the conditions which now
prevail 1t is the contention of the plain
tiff that the contractor is liable Tor these
conditions by reason OF the provisions OF
the plans and specifications. forming par5
of the contract between the contractor ana
the city and the effect of which,. generally
speaking. was to impose upon ani, me con- con-
working drawings for the carrying INTO
practical effect of the general plans ana
specifications furnished by the Department
of Bridges. These detailed drawings are
renuired hv the specification to satisfy
architectural as well as engineering con
siderations. and while the genera pan
of the structure was settled by the city
officials the contractor was made respoh-
sible for the correctness or draWlhSs, even
though they had been approved by lne
Commissioner.
The contract provided in great detail for
the construction OF an eOlllCt WHICH oiloNIu
be so proportioned as to meet certain re-
uuirements. and 1t would appear that the
proportioning of the bridge to meet THESE
reonirements is one of the chief engineer
ing considerations involved in the work
The citys contention is that the contractor
had no responsibility for the plan or the
bridge and having furnished the materials
and done the work called for, the con
tractor was entitled to payment, 1rreSpec-
tive of whether the bridge, in its completed
condition, answers the requirements from
an engineering point of view either OF the
plans and specifications or of the demands
of a structure sufficiently safe TO bear the
burdens sought to be imposed upon it.
| am of the opinion that the questions
presented here are grave and should be
disposed of upon the trial and not on THIS
preliminary motion. The only harm which
can be done by the issuance OF temporary
Injunction is bv the running Of interest
charges upon the principal claimed to be
due until this action can be tried and dis
posed of. If adequate provision Is made
for the protection of such interest charges
ana for the costs Of this action no dam
age is caused in the city.
IT, on the other hand, this motion should
be denied and. the money allowed to be
paid to the contractor, il IS difficult TO see
how the city would be in a position TO
ever have properly tested the question of
the responsibility of the contractor for
such defects and structural weaknesses as
exist in the bridge.
should, therefore be granted, upon con-
dition that plaintiff, within two days. fur
nishes an undertaking in the sum of $4,000
10 indemnify the defendant for any loss
that may be sustained by reason of the
granting of the injunction If such under
taking is not furnished. then this mo-
/ tion must be denied with SO costs