(dissenting):
I am unable to concur in the opinion of Mr. Justice Scott for the following reasons: Under the appellant’s contract it was obligated, after putting down the pavement, to maintain it in good condition for a period of five years. The maintenance included (a) the repairing of such natural defects as might appear, ■ e. g., cracks, depressions, etc., and (b) the restoring of the pavement after it had been removed with the consent of the city for certain specified purposes... The appellant was not obligated to perform any of the work speci fied under the maintenance clause until notified by the city to do so, and where the defect was caused by the removal of the pavement with the city’s permission, this had to be restored within five days after notice given. The complaint alleges that in January, 1901, the appellant was notified to restore the pavement where it had been removed by the defendant Consolidated Telegraph and Electrical Subway Company, and up to June 9, 1901, it failed to comply with the notice or do any part of the work required, or take any precautions whatever to prevent persons lawfully using the street being injured. On the day last named a person rightfully using the street was injured on account of the defect and subsequently recovered a judgment for $2,000 and costs against the city. The appellant had due notice of the commencement of the action and was afforded an opportunity to defend the same. This it refused to do, and the city, having paid the judgment, seeks in this, action-to recover from the appellant the amount paid.
*824. There is a primary duty resting upon the city to keep its streets in a condition reasonably safe for all of the purposes to which they may be lawfully put, and this duty it cannot, as against third parties, delegate to another. (People ex rel. Markey v. City of Brooklyn, 65 N. Y. 349; City of Brooklyn v. Brooklyn City R. R. Co., 47 id. 475.) But a contractor may, for a valid consideration, agree with the city to keep a street in repair, and if he does so he thereby assumes, at least so far as the city is’ concerned, that obligation; and if he fails to do so, he at once becomes liable to the city for any damages that may be recovered against it resulting .from his failure. If an injury be sustained by a person lawfully using the street, and by reason of that fact he has a recovery against the city, then it may — proper notice of the action having been given and an opportunity , afforded to defend the sanie — recover from the contractor the amount which it has to pay. (City of Brooklyn v. Brooklyn City R. R. Co., supra; Lowery v. Brooklyn City & Newtown R. R. Co., 76 N. Y. 28; McMahon v. Second Ave. R. R. Co., 75 id. 231; Schuster v. Fortysecond St., M. & St. N. A. R. Co., 192 id. 403.)
It does not need the citation of authorities to sustain the proposition that where one, for a valuable consideration, undertakes to keep a public street in repair and fails to perform, he thereby makes' himself, liable for whatever damage the city may sustain by reason of his failure. The contract in suit provided that the appellant should keep the pavement ‘ ‘ in good condition ” for the period of five years and that “ during the period of maintenance the contractor shall within five (5) days after the receipt of notice so to do, restore the pavement over all openings made by corporations or plumbers for making new service connections, or repairing, renewing, or removing the same, and over all trenches made for carrying sewers, water or gas pipes or any other sub-surface pipes or conduits, for the building or laying of which permits may be issued by the President.” The complaint alleges that at the time stated thérein, at the special instance and request of the Consolidated Telegraph and Electrical Subway Company, the president of the borough of Manhattan issued and granted to it permission to open the pavement across the street covered by the appel*825lant’s contract, which permission was granted after due notice to the appellant, and with its consent, and upon the express understanding that it would restore the pavement. After the opening had been made the city gave the notice required by the contract to the appellant to restore the pavement. It failed to do so and by reason of that fact the city was subjected to damages.. Of course, it could have made the repairs itself, but having contracted with the appellant to do so, it had aright to rely upon the contract, and in case it was subjected to damages for not keeping the street in proper condition, look to the appellant for whatever it had to pay. This is precisely what occurred, and upon the facts alleged I think the complaint states a cause of action, for which reason the judgment should be affirmed, with costs, with leave to the appellant to withdraw its demurrer and answer on payment of costs in this court and in the court below’.
Ingraham, P. J., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.