I.concur in the conclusion of Mr. Justice Hatch. The scheme adopted by the statute imposed upon the board of rapid transit commissioners extensive power in the construction of this road. They were to provide the plans by which the road was to be constructed, and necessarily were to determine the width of the cut, the thickness of the walls and just how they were to be constructed ; and from time to time, as the construction proceeded, they had authority to change the plans or the method of construction. The construction of the subway was to be paid for by the city; the equipment of the road was to be paid for by the contractor; and the statute defined what should be equipment and what should be construction. The contract that was made carried this definition of equipment into it. It cannot be doubted but that the board and the engineer had power to change the plans for the side walls of the tunnel and provide that they should be thicker than provided for by the original plans and contain open spaces to be used for the conduits by which the electric power was to be carried to the cars to be used in operating the road. I quite agree with the court below that neither the board nor the engineer could call that construction which was in reality equipment, and compel the city to pay for it; but the board had the right to determine how the side walls of the tunnel should be constructed and that it should contain spaces to be used for the ducts or conduits for the electric wires, and such a provision would not make the whole wall a duct or conduit, nor the cost of constructing the wall cost of equipment. When the rapid transit commissioners determined that the walls should be built wider than at first contemplated, and in that wall there should be left a space to be used for a conduit, it determined the question of the construction of the wall which was an essential part of the subway construction. I think we should look at this wall as if its present method of construction had been provided for by the original plans, as undoubtedly it would have been if at the time the original plans were made it had been determined that electricity should be used as the motive power, and that the safe and efficient operation of the road required that the ducts for the transmission of this power should be inserted in the wall; and in that case I do not think it *226would have been claimed that the cost of the construction of the wall should be charged to equipment. The fact that the determination by the board to adopt electricity as the motive power, and that the proper method of supplying such electricity to the cars was by ducts or conduits built into the wall, could not, upon any principle, make the cost of the necessary excavation or the building of the wall a part of the equipment any more than if the board had originally determined to build the wall as it is now built. It is still the wall of the subway, which is a part of the construction of the road itself, and the cost of building that wall seems to me to be clearly a cost of the subway itself, and not equipment. The cars to be used in the operation of this road are clearly equipment to be furnished by the contractor. If after the plans had been prepared it had been determined to run cars considerably higher than originally contemplated and in consequence of that change in the height of the cars it had been necessary to increase the height of the subway, I think that the cost of building the increased height could not be called equipment, although such increased height was made necessary by the equipment to be furnished by the contractor, and so the fact that the adoption of electricity required that the walls should be thicker so as to contain the ducts or conduits through which the electric wires were to run would not make the walls themselves conduits or the increased cost of building the walls the cost of equipment.
The modified plans, as adopted, provided that there should be inserted in the walls a vitrified brick chamber or duct through which the wires should be placed which carried the electricity from the outside of the tunnel to the cars. The photographs and plans, a part of the record, show clearly this method of construction. I was inclined to think that these vitrified brick conduits or ducts would come within the definition of equipment which is contained in the statute. They are to be used to carry the electric wires and thus be “ ways, conduits and mechanisms, * * * used for the * * * transmission of motive power,” and as such equipment under section 35 of the act (Laws of 1891, chap. 4, as amd. by Laws of 1896, chap. 129, and Laws of 1900, chap. 616). There is, I think, a distinction between the wall of the subway and these ducts or conduits inserted in the wall. One is essentially a neces*227sary part of the subway. The other is essentially a part of the equipment, and whether these ducts were placed inside the wall or outside the wall, they had no relation to the construction of the road itself, but were there solely for the purpose of furnishing a method for the transmission of the electric power. Section 35 {supra) provides that “ wires, ways, conduits and mechanisms, * * * and devices of every nature whatsoever used for the * * * transmission of motive power ” shall be equipment.
As, however, the corporation counsel conceded on the argument that this was all construction or all equipment, and as I am clearly of the opinion that the walls are construction and not equipment, I concur in granting the application.