Plaintiff, while walking across Melrose Avenue, in Bronx County, caught her foot in a hole underneath the rail of an unused trolley track, pitched forward and sustained serious injuries. There was testimony that the cobblestone roadway sagged a good six inches below the lip of the rail at the point where the accident occurred, and that this condition had existed for several months.
*679Until some years before the date of this accident the Third Avenue Railway Company, which defendant trustees have succeeded in interest, had operated a street surface railway over these tracks. Plaintiff sued the City of New York and the trustees. After trial without a jury, she secured a judgment against all defendants. The Trial Justice then directed judgment over against the trustees, and in favor of the city, on the latter’s cross complaint. None of the defendants raises any question with respect to liability to the plaintiff; but the defendant trustees appeal from the judgment rendered on the city’s cross complaint.
On November 9, 1940, the city and the railway company entered into a contract permitting the railway company to operate buses in place of streetcars in the city of New York, and by its terms imposing the following obligations on the company whenever such substitution was effected:
‘6 Article Thirteen * * *
“ Section 2. Anything in any statute, law, franchise, consent, local law, ordinance or requirement of any kind whatsoever to the contrary notwithstanding, when and as all street railway operation on any part of a street shall cease and bus operation superseding such street railway operation thereon shall be effected, to the extent and as provided in the Bus Agreements, then and from thenceforth the Railway Companies, and each of them, and their and each of their successors and assigns, shall not be under any duty, liability or obligation of any kind whatsoever to pave or repave or have or keep in repair any part of the railroad area in such part of such street, except to repair the existing pavement within the said railroad area so long as its tracks remain in such part of such street. * * *
“ Section 8. Subsequent to the cessation of the operation of street surface railway on any street, and until removal of Company Structures as hereinabove required, and while any property, title to which is in any Railway Company, remains in the street each Railway Company shall remain as fully liable for any and all claims for damage to persons and property occasioned by, or growing out of, the presence of its tracks and track structures and property in any street as it would have been with respect thereto prior to such cessation.”
The liability of the railway company prior “ to the cessation of the operation of street surface railway ” was fixed by section 178 of the Railroad Law, which reads as follows:
“ § 178. Repair of streets; rate of speed; removal of ice and snow.
*680“ Every street surface railroad corporation, so long as it shall continue to use or maintain any of its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe; but nothing contained in this section shall require any street railroad corporation to make pavements or repairs over openings made in the streets by any person, municipality or corporation other than such street railroad corporation, for any purpose other than the pavement or repavement of the street. In case of the neglect of any corporation to make pavements or repairs after the expiration of twenty days ’ notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode and use of tracks, and removal of ice and snow, as the interest or convenience of the public may require. A corporation whose agents or servants wilfully or negligently violate such an ordinance or regulation shall be liable to such city or village for a penalty not exceeding five hundred dollars, to be specified in such ordinance or regulation.”
The city, under the common law, and the trustees, under section 178 of the Railroad Law, were each charged with similar duties to maintain the railway area of the street in good condition (Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183). The trustees contend that they were not active or primary wrongdoers, that they and the city were therefore joint tort-feasors in pari delicto, and that neither may recover against the other on any theory of implied indemnity (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; New York Consolidated R. R. Co. v. Massachusetts Bonding & Ins. Co., 193 App. Div. 438, affd.. 233 N. Y. 547; McFall v. Compagnie Maritime Beige, 304 N. Y. 314).
The Trial Justice was evidently inclined to agree with this contention of the trustees. He nevertheless directed judgment in favor of the city, on the theory that under the 1940 agreement the railway company assumed a contractual obligation to indemnify the city for claims such as these. On the record before us, however, as enlarged by stipulation, there is no basis for spelling out such an agreement of indemnification within the *681four corners of the 1940 contract. But the contract does clearly provide that the change to bus operation does not in any respect change the obligation of the company to keep its track area in permanent repair, pursuant to section 178 of the Bailroad Law.
The sole question posed on this appeal, therefore, is whether the effect of section 178 is to impose upon the trustees the initial and paramount duty of keeping the track area in repair, so that the city’s liability is only secondary.
Section 98 of the Bailroad Law of 1890 (L. 1890, ch. 565) was the predecessor to the present section 178, and they are almost identical in terms. Prior to the enactment of section 98 it was the practice of municipalities, before granting permission to lay railroad tracks upon their streets, to require a covenant that as partial consideration for the franchise the railway company would keep the pavement area under and adjacent to its tracks in good repair.
The leading case involving a claim over by a municipality against a railway company for liability under such a covenant is City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475). After paying a judgment to a claimant injured as a result of a dangerous condition within the line of defendant’s tracks the city brought an action on the covenant in the bond furnished it by the railway company. In affirming a judgment for the city the court stressed that when the defendant had contracted with the city to keep the streets in repair, “ in consideration of a license to use them to his benefit in an especial manner ”, it undertook a duty to the public in the place and stead of the municipality (p. 485). The court went on to say that as between the two wrongdoers the railroad was the principal delinquent, “ the plaintiff having taken from the defendant a covenant to do that which, if it had been done as agreed, no harm would have befallen, had a right to rely thereon; and, though liable to third persons, are not so in pari delicto with the defendant as to be unable to sue and recover over ” (pp. 486-487).
In Schuster v. Forty-Second St., Manhattanville & St. Nicholas Ave. Ry. Co. (192 N. Y. 403, 406) there appears to be some suggestion that the provisions of section 178 imposed the same obligations upon street surface railways as had the contracts and bonds of the type construed in City of Brooklyn v. Brooklyn City R. R. Co. (supra). The force and effect of the statute were raised squarely by the following portion of the trial court’s charge: “ That the duty that was laid upon the railroad company to keep its tracks in a condition of permanent repair is *682an original duty, and that the railroad company cannot await the order of the local authorities before putting its railroad in a condition of permanent repair.”
In affirming the judgment against the railway company, the court held that the right of supervision reserved to the city in section 178 did not relieve the railway of its positive duty to make repairs, as prescribed in the first provision of the statute. And the notice (then thirty days) which the city was required to give before it could proceed to make repairs at the expense of the railway company was not a condition precedent to imposing this initial duty on the railroad company. It did not apply to “a dangerous hole which needed immediate attention and repair in order to protect the public ” (p. 408), but only to general repairs.
There was also some indication in the Schuster case that these provisions of section 98 (now § 178) were designed to take the place of the contracts previously entered into between municipalities and railway companies, and that the statute embraced most of the essential provisions of those contracts. In McCarthy v. Brooklyn & Queens Tr. Corp. (254 App. Div. 757, affd. 279 N. Y. 737) the accident was the result of faulty repavement by the city of that portion of the roadway between defendant’s car tracks. The court said: “ The purpose of the statute seems to be to charge the defendant with sole responsibility for maintenance, irrespective of the source of defects.”
The holding in City of Rochester v. Campbell (123 N. Y. 405) is the main prop for the trustees’ position. In that case the municipality sued a property owner for the amount of a judgment that had been recovered against it by a pedestrian who was injured as the result of the defective condition of a sidewalk adjoining defendant’s property. There too the city’s action was based on a charter provision casting the duty on an owner of land 11 to keep the sidewalks adjoining his lot or piece of land in good repair ” (p. 409). The charter provision further resembled section 178 in that it gave the city the power “ to repair any sidewalk, when the owner of the property shall neglect to repair the same for five days after written notice so to do has been served on him ” (pp. 409-410); and it also gave the city the right to collect the expense of such repair from the property owner.
It was held that the injured pedestrian had no cause of action against the landowner, but only against the city. The primary duty of care was imposed upon the city as a concomitant of the responsibility for maintenance of sidewalks and highways *683which it assumed upon acceptance of its charter from the State (Conrad v. Village of Ithaca, 16 N. Y. 158); and therefore the city could not assert a cross claim against the abutting owners. It was limited to the only measure of recovery set forth in the charter — the cost of making the requisite repairs. The court, however, reasserted as well-settled law that if a municipality has contracted with a third party to keep its street in repair and if an injured person has recovered damages due to such party’s neglect in performing his contract, the municipality may in turn recover from the contracting party the damages it has been compelled to pay (p. 411). Most significantly, the opinion cites City of Brooklyn v. Brooklyn City R. R. Co. (supra) as authority for this statement.
In the Schuster case the court took pains to cite City of Rochester v. Campbell and to state expressly that it was distinguishable. While it did not isolate any specific ground of distinction it. alluded to the contractual ancestry of section 178, which has been heretofore noted. It also observed that the City of Rochester had not claimed that the defendant landowner was negligent. In that case the alleged liability was predicated wholly upon the statutory obligation to repair and upon the assumption that the omission to perform imposed a liability in favor of persons injured as a result of such omission. In this case the city specifically charges the trustees with negligence.
In both the Schuster and Brooklyn City R. R. Co. cases (supra) there is also strong emphasis placed upon the fact that by contract or by statute the duty was laid upon the railroads to repair the roadway in consideration of permission or franchise to use the highways in a special manner for their own benefit. There is a line of cases which holds that when an abutting landowner makes any change in the construction of a sidewalk for his own accommodation and as a benefit to his property the law imposes upon him “ the obligation of using due care to keep it in a suitable and safe condition for the public to walk over as a part of the sidewalk ” (Trustees of Canandaigua v. Foster, 156 N. Y. 354, 359). This doctrine of implied duty, as enunciated in Heacock v. Sherman (14 Wend. 58, 60), is that the owner “ is bound to repair * * * in consideration of private advantage ”. (See, also, Clifford v. Dam, 81 N. Y. 52; Nickelsburg v. City of New York, 263 App. Div. 625; Schrold v. City of New York, 273 App. Div. 872, affd. 298 N. Y. 738; Cordon v. City of Albany, 278 App. Div. 233, motion for leave to appeal denied, 302 N, Y, 949, and Ohrt v, City of Buffalo, 281 App. Div. 344.)
*684The tracks were inserted in the pavement involved in this case by the railway company’s predecessor, pursuant to franchise, for its own private advantage. The duty imposed by that circumstance and the reasons underlying it are well expressed in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475, 485, supra): “ When one contracts with that corporation [city] to keep any portion of those streets in repair, in consideration of a license to use them to his benefit in an especial manner, he in effect contracts to perform that duty to the public in the place and stead of the municipality, and the way is given over to him for that purpose, and he takes it into his care and charge therefor, and his failure to perform his contract is a failure to do that duty, and the damages which naturally and proximately result from non-performance are all the damages which naturally and proximately fall upon the corporation from the duty not being performed.”
The Schuster case appears to dictate recovery upon the city’s cross complaint pursuant to the provisions of section 178 of the Railroad Law. The judgment, insofar as it is appealed from, should be affirmed.