In considering the proper construction of the contract relied upon in the complaint, it is well to understand, in the first instance, what the precise obligation of the city of New York was in connection with the construction of this work: The tunnel as completed is the property of the city, made so by the provisions of the statute and confirmed by the courts in construction of the same. (Matter of McDonald, 80 App. Div. 210; affd., 175 N. Y. 470.) As the city did not construct the work through its agents and servants, but contracted for its performance, it could not be made liable for negligence in the manner in which the work was performed. The obligation, however, rested upon it to exercise care in providing for proper plans and specifications and a contract in fulfillment of the same which could be carried out without inflicting injury upon the *230walls of abutting structures.. If plans were adopted in the carrying out of which a nuisance would be created, for the adoption of such plans the city would be liable, whether the work was performed by an independent contractor or by itself. (Mayor, etc., of N. Y. v. Bailey, 2 Den. 433.) This doctrine was recognized in Maxmilian v. Mayor (62 N. Y. 160), and also in King v. N. Y. C. & H. R. R. R. Co. (66 id. 181). If the city adopted plans and specifications which would necessarily inflict injury upon the abutting property owner, when it might, by the exercise of care, have provided plans under which- the work could have been performed without injury to adjoining property, it could be held liable for negligence. This obligation upon the part of thé city is primary, and when the authority is delegated it rests upon the doctrine of respondeat superior,, which, as was said by Mullett, J., in Blake v. Ferris (5 N. Y. 48) “ is founded on the power which the superior has a right to exercise, and which, for the prevention of injuries to third persons, he is bound to exercise over the acts of his subordinates.” The city in this case had the power to adopt the plans by which the work should be done, and in the exercise of that power it also had authority to adopt such plans as would prevent injuries to third persons and thus prevent any injury in doing the work if the plans were properly carried out; consequently the doctrine precisely applies and has been recognized in many cases. (Deming v. Terminal Railway of Buffalo, 169 N. Y. 1; Ryder v. Thomas, 13 Hun, 296; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; Lockwood v. Mayor, 2 Hilt. 66.) The obligation, therefore, resting .upon the city was that it should not adopt plans for the performance of the work which in the proper carrying out would produce a nuisance or necessarily inflict injury upon adjoining property.' So, likewise, the city was charged with the obligation of maintaining its streets and public places, through which the work progressed, in a reasonably safe-condition, and to properly guard all excavations and obstructions therein in order that accidents might be prevented. This duty, as it itself authorized the opening and obstruction of the streets and public places, it could not delegate, so as to relieve itself from, liability, to an independent contractor. (Storrs v. City of Utica, 17 N. Y. 104.). The city, therefore, necessarily incurred, in connection *231with the performance of this work, a .contingent liability from which it could not shelter itself behind the acts of an independent contractor ; consequently, it was in a position where, for the purpose of safeguarding its interests and to protect itself from liability, it could demand that the contractor, by the terms of the contract, should provide in full measure indemnity for that part in which the city might be liable. To meet this situation the contractor, by this contract, covenants that the plans and specifications, if properly carried out, will not involve any danger to the foundations, walls or other parts of adjacent buildings or structures, and lie further covenants that during the performance of the work he will maintain the streets and other public places in a reasonably safe condition, and indemnify and save the city harmless from any liability arising therefrom, and will make good any damage that shall arise in the course of construction. The further provision of the contract is: “ The contractor shall be responsible for all damage which may be done to abutting property or buildings or structures thereon by the method in which the construction hereunder shall be done, but not including in such damage, any damage necessarily arising from proper construction, pursuant to this contract, or the reasonable use, occupation or obstruction of the streets thereby.”
It is claimed that this is a separate, independent provision of the contract, disassociated from any duty resting upon the city, and having for its sole purpose the indemnity of abutting property owners, and that the liability of the contractor is imposed by its terms to the full extent of providing indemnity to the property owner for any act of negligence either upon his part or upon the part of an independent contractor committed in any manner during the performance of the work. If such be its construction, it is manifest that the obligation imposed is onerous to the extent of being ruinous, for in considering the question the court cannot shut its eyes to the character of the work and its magnitude. It is common knowledge that great doubt existed as to whether a tunnel of this size coiild be constructed without entailing a destruction of the streets, undermining buildings and otherwise inflicting great damage in the process. Such being the fact, it is manifest that if, in addition to liability for, such damage as is necessarily incurred, there is added liability for all acts of negligence no matter by whom committed, language *232imposing upon the contractor a burden of such magnitude ought to be so cle&r and explicit in its provisions as to leave no room for doubt as to the intent upon the part of the city to impose and the contractor to assume such burden. It is undispntable that, for damage inflicted in the process of the work which did not arise out of defects in the plans the city would not be liable. (Bates v. Holbrook, 171 N. Y. 460, 468.) No obligation, therefore, rested upon the city to indemnify abutting property owners for- any loss, or damage occasioned by the proper performance of the work. It is equally well settled that in the prosecution of the work the contractor would not be liable for negligence in performance by an independent contractor. when, if the work was properly performed, no damage- would have resulted. (McCafferty v. S. D. & P. M. R. R. Co. supra; Miller v. N. Y., L. & W. R. R. Co., 125 N. Y. 118.)
It is claimed, however, that it was competent for the city to exact indemnity from the contractor for the property owner, and that the obligation having been assumed by the contractor, there is such privity of relation between the owner and the contractor as will permit an enforcement of the covenant if there be a breach of its conditions; that under such circumstances the doctrine of respondeat superior -does not apply, but liability is rested solely upon the terms of the contract and its breach. It is evident that a contract which thus radically changes the law in every essential relation existing between such parties ought to be expressed in clear and certain terms. There are no words in this contract which in express terms make this provision apply to third parties or to the owners of abutting property. The language laid hold of is that the contractor shall be responsible for all damage inflicted “ by the method in which the construction hereunder shall be done.” -It is. quite possible to satisfy this language by limiting the liability imposed thereby to such method used in construction as is required by the terms of the plans and specifications and the contract in furtherance thereof. If, however, the language be entitled to a broader construction than this, there are no words which extend the lam guage to embrace anything beyond personal performance by the contractor. It falls short, in language of imposing liability upon the contractor for acts of negligence by an independent contractor com*233mitted in the performance of his contract. The entire language of this clause may be given full force by construing it as providing for indemnity to an abutting property owner for acts of negligence committed in the method and manner of performing the work. While it is true that such construction would not add to the liability imposed upon the contractor for a negligent act of his own, yet in view of the very meagre statement from which is sought to to be levied such an enormous responsibility it is quite persuasive in leading the mind to the conclusion that the purpose of the parties was simply to stipulate, and make certain, liability for negligent acts by the person committing the same in carrying out the contract. It ought not to receive a more enlarged construction in view of the principles of law which apply in such relation, in the absence of express words making the contractor liable for the acts of independent contractors over whom he could have no control in the method and manner of doing the work, beyond the terms of the contract, nor in the selection of instruments by which the work is done.
Aside from this question, however, it is plainly evident that the primary intention of both parties to the contract was to furnish indemnity to- the city. If we give full force and a literal interpretation to this so-called independent provision we shall easily reach the conclusion that the contractor has been relieved from the primary obli- • gation which the city sought to impose and that instead of standing as an indemnitor to the city he is relieved from liability therefor. After assuming responsibility for damages incurred by the method of construction the clause proceeds with this exception : “ But not including in such damage any damage necessarily arising from proper construction pursuant to this contract or the reasonable use, occupation or obstruction of the streets thereby.” We have already observed that the first clauses of the contract averred in the complaint imposed the absolute obligation and duty upon the contractor as a guarantor of the perfect character of the plans and the assumption of liability upon his. part for the care of the streets and public places. If force is to be given to the quoted provision, then it ' necessarily follows that if damage resulted, to the abutting property owner from a proper performance of the plans and arise from a defect therein the language used relieves the contractor from liability therefor. It then becomes a pertinent subject of inquiry upon *234whom.does the liability rest. .Confessedly, if the plans were defective, liability for injury sustained arising .out of proper performance becomes an obligation of the city ;■ so that the necessary result is, if this construction obtain, that the contractor is relieved from liability and the city bears the burden. There can be no escape from this conclusion based upon such construction. Manifestly, the parties to this contract never contemplated such a result. It becomes, therefore, necessary to construe the provisions of this contract relating to these subjects together. So construed, it seems clear that the primary purpose was to indemnify the city against loss and damage for matters in respect to which it owed a duty ; that the language of the last clause of the so-called independent provision must yield to the explicit provisions of the first clauses, and that the part of the contract set out in. the complaint should be so construed as to carry out the primary purpose and intent of the parties by imposing upon the contractor the obligation and duty which rested upon the city and give to the property owner the right to indemnity for acts of negligence occasioning injury against persons inflicting the same, .Unless so construed, the necessary result is to relieve the contractor from liability to the city and make him only liable to the abutting property owner for negligence. In this respect the. city owed no' duty which it was called upon to protect, but it did owe a duty for which it sought indemnity, and no construction should be given to these clauses of the contract which works a destruction of such indemnity provision. So far as the contractor has assumed the duty resting upon the city he is liable to persons suffering injury on account thereof within the doctrine announced in Cook v. Dean (11 App. Div. 123; affd. on opinion below, 160 N. Y. 660) and many other cases. These cases all proceed upon the theory that where the obligor assumes the discharge of a public duty which devolved upon the corporation to perform, a party suffering injury may resort in the first instance to the person who has assumed the duty, and he stands in such privity of relation- thereto as enables him to maintain the action. These cases are without application, however, for the reason that the plaintiff does not found his cause of action upon any duty resting upon the city. This is evident from the averments of his complaint, which clearly show that his cause of action arises out of the manner in which a sub-contractor *235carried on the blasting of rock in making the excavation, for the tunnel. It rests, therefore, upon a negligent act of the sub-contractor. For that act, the city was not responsible and the plaintiff recognizes such fact by not making the city a party to liis action. The duty and obligation assumed by the terms of the contract embraced only such matter as that for which the city would have been liable, and as no liability is shown to have, arisen therefrom, so far as the cause of action now set out is concerned, no liability attached to the' contractor by virtue of the terms of his contract, because he has not assumed such obligation and duty and it never rested upon the city.
I concur, therefore, with Mr. Justice Ingraham in the opinion which he has delivered in this case.
The judgment should be affirmed, with costs, with leave to the plaintiff to plead over within twenty days on the payment of costs in this court and in the court below.
O’Brien and McLaughlin, JJ., concurred.