As to the items involving extra work in the first, third, fourth and sixth causes of action, whether performed on the order of the Public Service Commission, or made necessary by its changes of plan, it is quite clear .that the city cannot avoid payment merely upon the ground that it has not expressly authorized an issue of bonds or corporate stock in advance of the doing of the work, out of which to pay for such extra work. I base this conclusion mainly upon the ground that, when the board of estimate and apportionment gave its consent to the original McGovern contract, it consented to a contract which contemplated and provided for the doing of extra work upon the order of the Public Service Commission and as deemed necessary by the Commission without any limitation upon the amount of such extra work. It would have been entirely competent for the board of estimate to have refused to consent to any construction contract containing an extra work clause, on the ground that the amount of extra work was not limited, but when the board of estimate chose to rely upon the judgment and good faith of the Public Service Commission as to ordering extra work and gave its consent to a contract providing for extra work, it is plain that, whether judged by purely legal principles or by good faith, the city cannot successfully avoid payment for extra work, done on such order of the Public Service Commission, upon the mere ground that the board of estimate has failed to make the necessary appropriation. I considered these provisions of the Rapid Transit Act with care in People ex rel. *621Holbrook, Cabot & Rollins v. Mitchel (N.Y. L. J. Aug. 24, 1915), where the question at issue was whether the board of estimate and apportionment in giving its statutory consent to a construction contract and prescribing a limit to the amount of bonds available to meet the requirements of the contracts, has the power to couple with such consent a proviso dictating to the Public Service Commission a change in the terms of the contract. What was there said bears upon the point under consideration and was in part as follows:
“ Acting under the provisions of the Rapid Transit Act and after taking the necessary preliminary steps, such as obtaining the constitutional consents, the preparation of the detailed plans and specifications and the holding of a public hearing upon the form of the contract, the commission adopted a form of contract for the construction of section 3. This form of contract was duly advertised for proposals in accordance with the provisions of section 36 of the Rapid Transit Act,* and after a consideration of such proposals was awarded to the relator, which was the lowest bidder. The form of contract was of the unit price type, the work being divided and subdivided into 151 units, covering all the work that could be foreseen, for each of which a separate price was bid. In view of the complications and the uncertainties incidental to constructing rapid transit railroads in city streets, it has been deemed necessary to provide some method for the payment for incidental work that cannot be foreseen. This was provided for in Article XII of the form of contract. This article provided in effect that in case any work or materials were required that were not susceptible of classification under the 151 unit prices, the contractor must do such work and furnish such materials and would be paid therefor at actual cost plus 10 per centum to cover overhead expenses. As an alternative payment provision the chief engineer of the Public Service Commission was empowered to fix a unit price or lump sum price for such work and materials, which, if approved by the commission and accepted in writing by the contractor, would govern instead of the percentage basis of compensation. *622This alternative provision has been in all subway construction contracts awarded since early in the year 1913, and there are now outstanding contracts involving an expenditure of over $73,000,000 which contain it. It is not disputed that the clause in question has worked well in practice and that the city has suffered no detriment therefrom.
“ Subdivision 2 of section 37 of the Rapid Transit Act,* having to do almost exclusively with the issue of bonds by the city and the method of providing funds for subway construction and equipment, provides that: 'The amount of bonds authorized to be issued and sold by this section shall not exceed the limit of amount which shall be prescribed by the board of estimate and apportionment or such other legal † authority having power to make appropriations of moneys to be raised by taxation, and no contract for the construction of such road or roads shall- be made unless and until such board of estimate and apportionment or such other legal f authority shall have consented thereto and prescribed a limit to the amount of bonds available for the purposes of this section, which shall be sufficient to meet the requirements of such contract in addition to all obligations theretofore incurred and to be satisfied from such bonds.’ After this contract was duly awarded to the relator as the lowest bidder, it was transmitted by the commission to the board of estimate and apportionment for appropriate action under the provision of section 37, above quoted. The board of estimate and apportionment promptly consented to the contract and prescribed bond limit, but, although the form of article 12 of the contract had been employed to every one’s satisfaction since the first contract was awarded, and had been determined upon at the public hearing and had been approved by the corporation counsel, and was a material part of an advertised proposal duly accepted by the Public Service Commission, the board of estimate decided by a vote 9 to 7 to tack on to its consent the following provision: ‘ Provided, however, that before this consent shall become operative, there shall be excised from the contract the concluding paragraph of *623article 12, which permits the substitution of a lump sum price or unit prices for work not originally bid on, in lieu of a determination of cost to the city based on the cost of labor and materials entering into such work, plus 10 per cent, as provided for elsewhere in said article/ As this does not amount to a legal consent, the commission cannot execute the contract, and as the contractor fears that this material change, made after award and in a contract whose terms must be advertised in advance of an award, will at least throw a cloud upon its validity, and as the contract involves an investment of several millions of dollars, the contractor has been forced to appeal to the courts to determine the validity of this belated attempt of the board of estimate and apportionment to exercise control over the details of the subway construction contracts. In the meantime, work upon a vitally important link in a great public improvement affecting the interests of the entire city is at á standstill.
“ For answer to the legal question involved we must look to the Rapid Transit Act and see where the responsibility for the form of the construction contracts is lodged. It is difficult to see how any one who is familiar with the history of the Rapid Transit Act and its development can fail to see that the Public Service Commission is the body intended to be charged with responsibility for and authority over the form of the construction contracts. The Rapid Transit Act of 1891, as amended by the Legislature of 1894, contemplated the creation of a board composed of members named in the act to exercise the powers and duties prescribed therein and provided that such board, after obtaining the necessary constitutional consents, should be independent of municipal control, except in one instance, namely, that any contract for construction at municipal expense must, before execution, be approved as to form by the corporation counsel. The act contained a limitation upon expenditures for rapid transit construction, the limitation being, as embodied in chapter 752 of the Laws of 1894, amended by chapter 519 of the Laws of 1895, in substance as follows: ‘ The amount of bonds authorized to be issued and sold by this section shall not exceed $50,000,000 par value without the consent of the Legislature first had and obtained; provided, however, that *624such amount shall be increased by a sum not exceeding five millions of dollars, if the board of rapid transit railroad commissioners shall certify that such increase is made necessary by payments required for any lands, property rights, terms, easements or privileges which shall be acquired by the said city, as hereinafter provided.’ This statutory limitation upon expenditures for rapid transit construction was removed by chapter 562 of the Laws of 1904, which enacted a provision word for word the same as the present provision of section 37 of the Rapid Transit Act hereinabove quoted. The purpose of the legislation of 1904 was plainly to transfer from the Legislature to the city authorities the right to fix the limit of rapid transit expenditures, and it was for this purpose that provision was made for the prescribing of a limit of expenditures by the city authorities and for the obtaining of the consent of the city authorities before any construction contract should be entered into. There is no indication anywhere in the act that there was any intention on the part of the Legislature to transfer to the board of estimate and apportionment any of the powers lodged in the rapid transit board, but on the contrary the Legislature indicates a plain intention to shift from the Legislature to the city the responsibility to determine to what extent the city should be committed financially for rapid transit improvement, while at the same time leaving the planning and managing of the work undisturbed in the rapid transit board. An analysis of the entire act and of each provision under which the board of estimate and apportionment is directed or authorized to take action concurrently with the Public ■Service Commission, or after the commission has acted, will demonstrate that the sole function of the board of estimate and apportionment, with' reference to construction contracts, is to provide funds to meet the cost of such construction, and that the board has no authority or jurisdiction whatever with regard to the terms and conditions of the contracts. A detailed analysis would too greatly extend this opinion, but it may be noted here that the act (section 6-1) * provides that the commission shall prepare the detailed plans and specifica*625tions, including such devices and appurtenances as it may deem necessary, and (section 26-2) * that '.such contract for construction shall contain such terms and conditions * * * as said commission shall determine to be best for the public interests.’ In the commission, and not in the corporation counsel or in the board of estimate and apportionment, is lodged the power to compel obedience to the provisions of rapid transit contracts and certificates (section 9-1),† and to the commission is intrusted the acquisition of the necessary real estate and rights and easements therein without submission of its action to any board, and coupled with the power to direct the corporation counsel to institute such condemnation proceedings as it may deem necessary. Throughout the act it is apparent in all its important sections that the commission is vested with complete power as the planning and managing board, and that the board of estimate and apportionment, so far as construction contracts are concerned, is the financial board to determine the limit to be set to the city’s rapid transit expenditures. In all matters involving the granting of franchises, the determination and establishment of routes and general plans of construction, equipment and method of operation, the board of estimate and apportionment has had, since the Elsberg legislation of 1906, a right of approval and a determining voice, as is natural and proper. In every such case the act uses the word ' approve ’ in conferring the power upon the city, whereas in section 37 it is only a consent that is required. The words ' approval ’ and ' consent ’ are not used in the act as synonymous. The board of estimate and apportionment is given express authority to approve ' general plan ’ and, as the legal authority in charge of streets, to consent to the use of particular streets for railroad purposes. The approval of general plans of construction involves a determination of the advisability of those general plans, and the board of estimate and apportionment might be well within its rights in insisting that the form and substance of such general plans be *626made in all respects satisfactory to it before granting its approval. The approval referred to in the act is properly construed as an approval both as to terms and conditions, but ‘ consent ’ cannot be distorted into a synonym for ' approval ’ both as to ‘ terms and conditions ’ where the ' terms and conditions ’ of the contract are, under the terms of the statute (section 37-2), to be fixed by another body. The ‘ consent ’ required from the board of estimate and apportionment is a consent merely to the execution of an agreement committing the city to spend money, a conclusion which is strongly fortified by finding the provision for that ‘ consent ’ part and parcel of a section headed ' issue of bonds ’ and dealing almost exclusively with that subject and the provision of money for rapid transit purposes.
“ Of course, if the board of estimate chose to refuse to consent to a construction contract because of the presence of an extra work clause, or because the amount of extra work was not limited, it would have the right to do so, because to it belongs the power of authorizing expenditures. But that is not this case. It has consented to all the extra work that the commission deems necessary and without limit, and is merely seeking to control the discretion of the commission in determining which is the more advantageous way of arranging to have it done.
“ Moreover, the contention that the board of estimate and apportionment has the authority to alter the terms of the construction contract renders section 38 of the act* nugatory for this section authorizes the Public Service Commission, with the consent of the contractor and its sureties, to change and modify any construction contract and the plans and specifications thereof, with the sole exception that ‘ no change or modification in the plans and specifications consented to and authorized pursuant to section 5 of this act ’ shall be made without the consent of the board of estimate and apportionment. Turning to section 5† to ascertain what plans and specifications must be made with its consent, we find that they *627are solely the ‘ general plan of construction ’ for any rapid transit railroad proposed by the Public Service Commission in connection with the determination of a route. Where the commission is thus expressly charged with the responsibility of preparing the construction contract, with advertising it, with hearing objections thereto, with changing the terms, after objections raised on public hearing, with awarding the contract, and is in addition authorized at any time, with the consent of the contractor and his sureties, to modify and change the plans and specifications of any construction contract without the consent of the board of estimate and apportionment, it seems utterly unreasonable for the board of estimate and apportionment to claim that it has any jurisdiction or control over the terms of these construction contracts. There must be ultimate responsibility and power committed to some one official body; at any rate there ought to be in any intelligent scheme of handling great public undertakings of this character. That there is such a body and that the control over construction contracts is committed to the commission is demonstrated by the authority given to the commission to alter and amend these contracts at will, with the consent of the contractor, and is entirely in harmony with the scheme of the act, which just as definitely gives final authority to the board of estimate and apportionment in all matters of franchises, general plans for construction, equipment and operation and appropriating money for rapid transit purposes. I hold, therefore, that the board of estimate and apportionment has no authority or right to couple with its consent a proviso whereby it is sought to control the action of the public service commission in regard to the terms and conditions of this construction contract.”
With reference, however, to .the causes of action involving strictly contract work, which on the basis of unit prices have resulted in exceeding the bond Emit prescribed when the board of estimate consented to the original McGovern contract and its amendment, the matter is not so clear. It seems, at first blush, as though holding the city hable for any excess over the appropriation tended to nullify the absolute control over expenditure for rapid transit purposes which the Rapid Transit Act, the charter and the sound principle of “ home *628rule ” all contemplate and require to be maintained. It naturally occurs to one that if the prescribed bond limit may be exceeded on one contract the excess might be so large as to imperil the completion of other sections, if the whole work is to be kept within the appropriation for the work as an entirety; or, else, on the other hand, the city might find itself committed heavily and to an unknown liability, far in excess of its provision made for the undertaking. But the fact remains that the board of estimate deliberately consented to the unit price form of contract and that it knew when it did so that the amount of work was estimated and that, therefore, the gross price was not and could not, in the nature of things, be determined in advance. It was competent for the board of estimate to refuse its consent to this form of contract and stand out for a lump sum measure of liability, just as it could have refused to approve a form of contract authorizing the Public Service Commission to change the plans and require the doing of extra work. It decided in favor of the unit price contract, evidently relying upon the fact that the Public Service Commission had competent engineers who would know whether the contract estimates were measurably accurate. In a great engineering work of this character some variations, due to exigencies that the very best engineers cannot foresee, are inevitable. If the lump sum form of contract were employed, of course the contractor would add to his price a sum calculated to insure against such unforeseen circumstances. Then, if the difficulties did not arise, the city would have paid an excessive price. Recognizing that the city has to pay the cost of the work in any event, it was deemed best to secure the city against paying for contractor’s risk. When the work was done within the estimate, the city would gain the saving. That being so, it would not be fair to saddle the cost on the contractor in the event that the estimate was exceeded. . This form of contract, thus interpreted, is fair and reasonable to both sides. Neither does it leave the city unprotected, for the responsibility for the honesty and the reasonable accuracy of the contractor’s estimates is placed upon the engineers of the Public Service Commission, to whom the management and general control of the great rapid transit enterprise has been committed.
*629For these reasons, as well as upon the grounds so forcefully presented in the opinion of Mr. Justice Laughlin, I vote to affirm the order appealed from.
Smith, J., concurred.
Order affirmed, with ten dollars costs and disbursements.
See Laws of 1891, chap. 4, § 36, added by Laws of 1894, chap. 752, as amd. by Laws of 1909, chap. 498. Since amd. by Laws of 1913, chap. 540, and Laws of 1917, chap. 625.— [Rep.
Amd by Laws of 1909, chap. 498, and Laws of 1911, chap. 888. Since amd. by Laws of 1913, chap. 540, and Laws of 1917, chap. 625.— [Rep.
Sic. Statute reads “ local.”— [Rep.
Amd. by Laws of 1909, chap. 498, and Laws of 1910, chap. 205.— [Rep,
Renumbered from § 34, added by Laws of 1894, chap. 752, and amd. by Laws of 1909, chap. 498. Amd. by Laws of 1912, chap. 226, and Laws of 1917, chap. 625.— [Rep.
Amd. by Laws of 1909, chap. 498.— [Rep.
Amd. by Laws of 1909, chap. 498. Since amd. by Laws of 1912, chap. 226. — [Rep.
Amd. by Laws of 1909, chap. 498.— [Rep.