The opinion
Patterson, J. (dissenting):
Mr. Justice Hatch in his opinion in this case has fairly stated what, to my mind, is the determinant consideration therein, and that is, whether the provision of the contract that the contractor shall be responsible for all damages which may be done to abutting property or buildings or structures by the method in which the construction shall be done, not including damage necessarily arising from proper construction or reasonable use, occupation or obstruction of the streets, is á separate and independent provision dissociated from any duty resting upon the city and having for its sole purpose the security and idemnity of abutting property owners. If this is not an independent provision, then the views expressed by Mr. Justice Hatch are conclusive; but in my judgment it is independent and provides for conditions, and situations entirely different'from any others contained in the contract relating solely to the indemnity of the city. It seems to me that the provision in question is one which the contractor entered into for the benefit of third parties as one of the terms and conditions upon which the rapid transit commissioners awarded the contract to him. He was contracting for himself, and the question is not one of the relation of inde *236 pendent contractors to the work, nor of trespasses committed by them; for the defendant is the principal contractor, and all the obligations of that contract devolved upon him. As I look at it, upon all the facts set forth in the complaint in this action, it is not a question of the -liability of the city at all, but of the liability assumed by the defendant <as a condition of his contract, not in indemnification of the city, but upon an original undertaking of his pursuant to a requirement of the rapid transit commissioners, who had the right to exact it from him for the protection of the owners of property abutting upon the line of the subway. Entertaining these views, I am unable to concur in the conclusion reached by my associates.
Judgment affirmed, with costs, with leave to plaintiff to plead over bn payment of costs in this court and in the court below.