I agree with Mr. Justice Hatch that the relator is entitled to recover of the city the cost of the extra excavation necessitated by the change of plans incident to placing the conduits for the electrical cables in the side walls of the tunnel and of constructing the vitrified hollow tile conduits or ducts.
During the argument it occurred to me, but the point was not made by counsel for the respondent, that it would be inequitable to decide that this extra work was construction, the entire cost of which must be borne by the city, for the reason that if the contractor is to be permitted to use these conduits without paying rental to the city, other than the low rate of rental provided for on all construction originally contemplated to be made by the city, and on which his competitors, in bidding, figured, he is saved a tremendous outlay of money, it having been his duty, under the statute and contract, before the alteration thereof, to construct all conduits that might be necessary for carrying the electrical cables, as part of the equipment and at his own cost and expense. It would seem that this question should have been considered by the board of rapid transit railroad commissioners before consenting to a change of the plans, or rather before consenting to a change thereof upon the understanding that the contractor was to be permitted to use the conduits constructed in the side walls free of special rental or other charges. Of course, if the commissioners deemed the construction of these conduits in the side walls sufficiently beneficial and advantageous to the city to justify *228them in paying the entire expense thereof, even if the contractor refused to pay a rental therefor, they not only had the power, but I think they might properly have consented to the construction at the expense of the city; but it does not appear that they endeavored to obtain from the relator an agreement to pay the fair value of the use and occupation. However this may he, the propriety of the action of the commissioners is not presented for review. The learned corporation counsel expressly stated on the argument that the respondent does not contend that the payment of this claim may be resisted upon equitable grounds, but concedes the contrary, and bases his action solely upon want of power on the part of the commissioners to change the plans and contract and require this additional excavation and the construction of these conduits at the expense of the city. It is thus conceded that there is no reason for withholding the writ on discretionary grounds ; that all facts relating to the right of the relator to payment for this work are fully presented by the moving papers and raise a question of law pure and simple, depending solely on the power of the commissioners, and that no question concerning the improper exercise of such power is involved. Hor is it claimed that the comptroller, in refusing to honor the voucher, exercised any judicial, discretionary or other than ministerial power, or that the relator should be left to an action at law. By stating these concessions on the part of the corporation counsel, I am not to be understood as disagreeing with him. They are merely stated for the purpose of showing that the questions which would otherwise require consideration and an expression of opinion by the court have not been investigated by me, and I express no opinion thereon. The single problem thus presented on the appeal is not difficult of solution.
That this method of construction is superior, and will tend to insure greater safety to passengers and those working in the tunnel as well, is manifest. Had the idea been thought of, or suggested originally, there can be but little doubt that it would have been adopted then. We cannot say that the change of plan was made solely for the benefit of the contractor. I think the fair inference is that it is for the benefit of the city and of the public as well. It does not appear how long this tunnel will last, but the fair inference is that it will last much longer than the period of fifty years, over *229which the lease to the contractor extends, and, probably, by repairs and reconstruction from time to time, it will last indefinitely. Moreover, express authority is found in section 6 of the Rapid Transit Act, so called, as amended by chapter 729, Laws of 1896, for making provision in the plans for the present and future needs of the public for sewers, gas or water pipes, or electric wires underneath the surface of the streets under which the railroad is to be constructed, and for the city’s charging rental for such use where the right to such use of the street without compensation did not exist. The learned counsel for the relator cites this as authorizing the construction of those conduits and the renting of such of them as may not be needed by the relator. I think authority may there be found for renting to the relator such of them as he needs. It appears, and is not controverted, that at the time the legislation was applied for, and when the contract was made, it was not contemplated that any permanent conduit would be necessary for conducting the electrical cables, but it was then intended that they should be suspended or placed in the interior of the tunnel, and remain of a movable nature. These were the circumstances under which it was provided by the Legislature and by the contracting parties that whatever conduits might be necessary for the operation of the road should fall within the classification of equipment, the expense of which should be borne, in the first instance, by the contractor, the same, however, to be purchased by the city at a fair valuation at the expiration of the lease. The conduits then in contemplation were to constitute equipment, and upon them as well as the rest of the equipment the city was to have a lien to insure the performance of the contract. By the contract and plans as changed by mutual consent, however, certain conduits suitable for holding the electrical cables, to enforce payment for which is the object of this proceeding, have become a permanent part of the construction and irremovable without the destruction of the side walls of the tunnel. These conduits thus forming a part of the permanent construction, do not, in my opinion, necessarily fall within the classification of equipment as used in the statute or in the contract. The commissioners may well have deemed that it was to the benefit and advantage of the city in its future operation of the road after the expiration of the lease, to have suitable conduits in the side *230walls for use in transmitting power. I think if the plans had originally so provided there could be no question but that it was the duty of the contractor to construct them; and it being his duty to furnish all conduits for equipment at his own expense he could not then use them without the consent of the city or its authorized representatives. Whether the contractor is or should be entitled to use these conduits for the electrical cables employed in transmitting the power is a separate and distinct question not necessarily presented on this appeal, which, as has been seen, involves only the power of the commissioners to require their construction. The commissioners had power under the statute and reserved in the contract to alter and change the plans with the consent of the contractor. We are not concerned with the question whether the contractor could have been compelled to submit to a change of the plans so as to provide for the construction of these conduits solely for the benefit of the city for three reasons: Fwst, the change was made at his suggestion; second, he has consented to it, and, third, most of the work was done by him at his own risk before the commissioners formally authorized the change or determined to allow him compensation therefor as part of the construction. Thus the question comes before us as if these provisions had been in the original contract and there had been no express provision that the contractor should have the use of the conduits gratuitously. One of the grounds upon which the relator recommended this change in the plans is that it will insure greater safety to the public; and this is undoubtedly true. Suppose in addition he or the chief engineer of the board had also recommended that it would be to the interest and advantage of the city on grounds of economy on account of the inpracticability of making these changes after the expiration of the lease without incurring several times the outlay that will be required in doing the work now, and suppose the contractor on account of its being to his advantage also had offered to pay the fair rental for the use of the conduits — could there be any doubt of the power of the commissioners, with the consent of the contractor, to make the changes for three reasons \ Is the power of the commissioners in that regard any less because they may intend to permit the contractor to use the conduit without paying rental ? Is it not apparent 'that this question as to the use of the conduit by the relator
*231is separate and independent from the power to authorize their construction? The contract expressly provides, as shown in the affidavit of the relator, that “the railroad hereby leased includes the railway constructed under the routes and general plan * * * together with terminals, stations and all other appurtenances whatsoever of the said railroad, but not including the equipment thereofP Thus it appears that the contractor not only agreed to furnish all equipment, including conduits, at his own cost and expense, but it was expressly provided that the city did not lease to the contractor (my equipment. Therefore, although these conduits are now part of the permanent construction and belong to the city, they will, if used by the contractor, serve the purpose of part of the equipment which it was originally contemplated was to be furnished and paid for by him; and for the purpose of any application on his part to use them they should be considered as equipment within those provisions of the contract requiring him to provide equipment at his own cost and expense; and since the conduits are not leased to the contractor, he must acquire his right to use them for he has not that right under the statute or contract as originally made at least. The relator claims that this is new construction and in this contention we agree. It, therefore, follows that lie cannot use it as equipment as a matter of right, for the city has not agreed to lease equipment, and the use he contemplates making of it is clearly equipment within the fair intent and meaning of the contract and according to the understanding of the parties at the time the contract was made, which, as shown by the moving papers, contemplated the suspension of the cables within the tunnel. The metallic cables inclosing the copper wires or other electrical conductors are not conduits, but those openings in the side walls will be if used for carrying such cables. This construction will result in justice to both parties; the contract permits it and equity requires it. It appears that the expense of providing suitable conduits or conductors for the electrical cables which was to be borne by the contractor would be very large; and some idea of this expense may be inferred from the fact that the contractor proceeded with and performed nearly one-half of this work of inserting conduits in the side walls, the aggregate cost of which, according to the affidavit of the chief engineer of the board, will be $1,150,000, before obtaining the formal approval of *232the commissioners to a change of the plans or arriving at an agreement as to. who was to pay therefor, and during several months he was proceeding under a resolution which required him to bear the entire cost thereof. It is, therefore, just that in being saved this large expenditure of money and greater protection against the liability of accidents he should pay a rental to the city for the use of these conduits; and it is right that the city should pay the cost of construction, since they become its property permanently affixed in the construction and useful beyond the period of the relator’s lease. The contractor in dealing with the commissioners is chargeable with knowledge of the limitations of their powers; and it seems to me that they have not, by failing to have an understanding with him with respect to paying rental, foreclosed the city from asserting a right to recover the fair value of the use of these conduits. All of the provisions of the statute and of this contract have not been drawn to our attention upon this appeal; but unless there are other provisions of the contract, not printed in the record, or of statutes, to which our attention has not been called, controlling on the point — I think that the commissioners were not and are not justified in permitting the contractor to use the conduits without paying the city any rental therefor. The commissioners may have led the contractor to believe that he is to be permitted to use these conduits gratis; and, if that be the effect of the amended contract and plans, then the question of power on the part of the commissioners to permit such use without compensation to the city, perhaps embarrassed by a question of estoppel in not having a - clear understanding on the subject, may arise in the future, but it is not directly presented and cannot be decided now. However, that does not affect the power of the commissioners, with the consent of the contractor, to make the changes in the contract and plans and to obligate the city to pay for the work required thereunder. For these reasons, therefore, I vote for a reversal of the order and for awarding a peremptory writ of mandamus according to the prayer of the petitioner.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs and disbursements.