(96 Misc. Rep. 52) CITY OF NEW YORK v. WOODHAVEN GASLIGHT CO. 1. GAS 7(2)-LAYING GAS MAINS-NEW YORK CHARTER. By Greater New York Charter (Laws 1901, c. 466) §§ 383, 391, the borough president has the power to issue permits to open streets, and by section 469 the commissioner of water supply, gas, and electricity has power to regulate and control the laying of gas mains, etc., but not power to issue a permit to open a street to lay gas mains, though they cannot be laid without his approval. To lay mains a gaslight company must get the permission of the borough president to open the street, and also get that of the commissioner of water supply, gas, and electricity as to the location and manner of laying the mains; neither the president nor the commissioner being able to prescribe the conditions upon which the other may grant his permission. [Ed. Note.-For other cases, see Gas, Cent. Dig. § 2; Dec. Dig. ~7(2).] 2. MUNICIPAL CORPORATIONS 682(4)-LAYING GAS MAINS-IMPOSITION OF CONDITION. The commissioner of water supply, gas, and electricity, in granting permission to a gaslight company as to the location and manner of laying its pipes, having power to regulate and control the laying of gas mains, can properly impose any reasonable condition, as that the company shall pay the reasonable cost of inspection of the work. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1470; Dec. Dig. 682(4).] Action by the City of New York against the Woodhaven Gaslight Company. Plaintiff's motion for injunction granted. Lamar Hardy, Corp. Counsel, of New York City (Edward S. Malone, of New York City, of counsel), for plaintiff. Cullen & Dykman, of Brooklyn (Jackson A. Dykman, of Brooklyn, of counsel), for defendant. CROPSEY, J. The city seeks to enjoin the defendant from opening a public street in the borough of Queens for the purpose of installing, repairing, or maintaining any gas mains therein not now in use by the public. The defendant has not obtained from the department of water supply, gas, and electricity of the city any permit for the doing of such work, and the absence of such permit or consent is the basis of this action. A permit, however, has been granted by the borough president of Queens to the defendant to open the street in question for the purpose of relaying its main and service pipes. This permit provides that the work shall be done under such reasonable regulations as the commissioner of water supply, gas, and electricity may prescribe, except that the holder of the permit shall not be required to pay for the services of any inspector not appointed under the jurisdiction of the borough president. [1] The duties and powers of the borough president and of the commissioner in question are clear and separate. Neither can restrict or circumscribe the other. The borough president has the power to issue permits to open the streets. Charter, §§ 383, 391; Rapid Transit For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Subway Con. Co. v. Coler, 121 App. Div. 250, 253, 105 N. Y. Supp. 824. The commissioner has the power to regulate and control the laying of gas mains, etc. Charter, § 469; Ghee v. Northern Union Gas Co., 158 N. Y. 510, 522, 525, 53 N. E. 692. The claim of the corporation counsel that the commissioner also has the power to issue a permit to open the street for the purpose of laying gas mains seems not to be justified. This is clearly indicated by the provisions of the charter, which expressly give the commissioner such power where electric mains or conduits are to be located under the city streets, but do not give it for the laying of gas mains (section 469); and the fact that the commissioner has no such power with reference to the laying of gas mains has been expressly decided (People ex rel. Q., B., G. & El. Co. v. Connolly, 89 Misc. Rep. 555, 153 N. Y. Supp. 721). But this question seems really to be unimportant. The commissioner does have control over the laying of gas mains and they cannot be laid without his approval. Ghee v. Northern Union Gas Co., 158 N. Y. 510, 522, 525, 53 N. E. 692. Whether he in fact can issue a "permit" is really immaterial, although it would seem that that is what it amounts to, for clearly the laying of the gas mains cannot be done without his permission, and it is subject to his approval. In order to lay its mains, the defendant must get the permission of the borough president to open the street, and it must also get the permission of the commissioner as to the location and manner of laying the pipes. Either permission, without the other, serves no_purpose. Both must be secured before the work can legally be done. People ex rel. Q., B., G. & El. Co. v. Connolly, 89 Misc. Rep. 555, 153 N. Y. Supp. 721; Ghee v. Northern Union Gas Co., 158 N. Y. 510, 525, 53 N. Ë. 692. The orderly way would seem to be for the gas company first to get the commissioner's permission and then the permission of the borough president. The permit from the latter alone is ineffective, and the mains cannot be laid under it without the permission of the commissioner. Nor can either the borough president or the commissioner prescribe the conditions upon which the other may grant his permission. [2] The commissioner, having the power to regulate and control the laying of gas mains, can properly impose any reasonable condition, and inspection is one. Schummacher v. City of N. Y., 166 N. Y. 103, 108, 109, 59 N. E. 773; Rapid Transit Subway Con. Co. v. Coler, 121 App. Div. 250, 255, 105 N. Y. Supp. 824. The requirement that the gas company pay the reasonable cost of the inspection is a reasonable condition to impose. People ex rel. Con. Subway Co. v. Monroe, 35 App. Div. 542, 547, 548, 83 N. Y. Supp. 382, affirmed 176 N. Y. 567, 68 N. E. 1122. This does not mean, however, that the gas company must pay for inspectors who do not inspect. The papers presented on this application reveal a serious question. The gas company present affidavits showing that the commissioner's inspectors have not worked, or have worked but little, although the gas company has been charged by the commissioner for the full pay of these inspectors. If the inspectors did not inspect, of course the gas company should not be required to pay, and the city would not be getting protection it is entitled to have, which comes from a proper in spection. The gas company's papers show that much of its work, done during the months of March, April, and May, was wholly uninspected by any representative of the commissioner; that one of the inspectors for whose services it has been charged spent only 19 hours during those 3 months in actual work, the days, hours, and months being given; and that the other inspector, for whom also it has been charged, never appeared on the work during those months. The daily reports of these inspectors show they worked 8 hours each day, except Saturdays. They show an arrival at 8 a. m., a leaving at 12 m., an arrival again at 1 p. m., and a leaving at 5 p. m. This is the invariable showing, and a regularity such as this would indicate would seem suggestive of inaccuracy. But these daily reports must be inaccurate upon the inspector's own affidavit, for he says he inspected several jobs almost every day, while the majority of the reports show the contrary; and his affidavit also says he spent much time trying to find out where the work was being done, although his reports show him actually inspecting all day. The other inspector, who according to the affidavits of the defendant did not appear on any job during those 3 months, spent, according to his daily reports, considerable time on "general inspection," but of what or where is not stated. This inspector says he is a supervising inspector. As his entire pay has been charged to the defendant, he must have been supervising only the inspector engaged upon defendant's work, namely, the one inspector who seems to have been charged with that duty; that is, it seems there was one inspector to inspect the work and this additional inspector to inspect him. There is a conflict in the affidavits, but the situation is one which seems to call for some action on the part of those interested. It is to be hoped that the daily reports of these inspectors are of more value to the head of their department than they seem to be on their face. As the defendant cannot lay its gas mains without the permission of the commissioner, and as that admittedly has not been obtained, the motion must be granted. The defendant will be restrained from laying its mains unless and until the approval of the commissioner is obtained, to the giving of which approval he may attach any reasonable condition, including the requirement that the defendant pay not to exceed $100 a month for each inspector for services actually rendered in connection with defendant's work. (96 Misc. Rep. 47) HOOPER v. CITY OF NEW YORK et al. (Supreme Court, Special Term, Kings County. June, 1916.) 1. PLEADING 367(5)—AMENDMENT TO CURE UNCERTAINTY. Code Civ. Proc. § 546, providing that the court may require a pleading to be made definite and certain by amendment, where one or more of its denials or allegations are so indefinite or uncertain that the precise meaning or application thereof is not apparent, applies to answers as well as to complaints. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 11742, 1183; Dec. Dig. 367(5).] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. PLEADING 367(5)—MOTION TO AMEND PROPRIETY OF PROCEDURE. A motion to compel an amendment of a pleading by making it definite and certain, and not a bill of particulars, is the proper procedure where the information sought is a material fact of the cause of action or defense. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 11742, 1183; Dec. Dig. 367(5).] 3. QUIETING TITLE 37(1)-PLEADING-ANSWER-INDEFINITENESS. In an action to compel the determination of a claim to realty against the city of New York, under Code Civ. Proc. § 1638, section 1639, providing that the complaint must set forth facts showing plaintiff's right, etc., with the source from which his title immediately accrued to him, and section 1641, permitting a defendant to plead its title, but providing that it must do so "as in a complaint for the same cause of action," where defendant's answer stated that its title came through charters or patents granted by colonial Governors of the province of New York, and also by virtue of the several Constitutions and laws of the state of New York, without mentioning dates or names, such answer should have stated what colonial Governors granted the charter, whether it was recorded and where, and what law of the state vested defendant with title. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 78; Dec. Dig. 37(1).] 4. PUBLIC LANDS 163-GRANTS FROM SOVEREIGNS. Grants from the sovereign, unlike those from a private individual, must be recorded to be valid. [Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 460–465; Dec. Dig. 163.] A private act of the Legislature must be pleaded, under Code Civ. Proc. § 530, providing that it is sufficient to designate the statute by its chapter, year of passage, title, etc. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 379; Dec. Dig. ~280.] Action by Hannah McCune Hooper against the City of New York and others. On motion to compel defendant City to make part of its answer definite and certain, as provided by Code Civ. Proc. § 546. Motion granted. Francis J. Byrne, of New York City, for plaintiff. Lamar Hardy, Corp. Counsel, of New York City (John J. Mead, of Brooklyn, of counsel), for defendant. CROPSEY, J. This action is brought under section 1638 of the Civil Code. The complaint sets forth plaintiff's claim and gives with specification the manner in which she acquired her title, as required by section 1639. The answer of the city, in addition to denying the material allegations of the complaint, pleads as a defense that the city has title to the property involved, and demands judgment barring the plaintiff from possession and adjudging that the city is entitled to possession. Paragraph 8 of the answer reads as follows: "(8) That the sources from which the city of New York derives its title to such premises are the charters or patents granted to the freeholders and inhabitants of the town of Gravesend, by the colonial Governors of the province (sic?) of New York, pursuant to the authority in them vested by the Crown and Parliament of Great Britain, and also by virtue of the several Constitutions and laws of the state of New York." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 [1, 2] This motion is to compel the defendant the city of New York to make this part of its answer definite and certain, as provided by section 546 of the Civil Code. That section applies to answers as well as to complaints. Rouget v. Haight, 57 Hun, 119, 10 N. Y. Supp. 751. While at times there seems to have been some uncertainty when such motions were the proper remedy and when bills of particulars should be sought, the general rule is that a motion to compel an amendment of the pleading by making it definite and certain is the proper procedure, where the information sought is a material fact of the cause of action or defense. Warner v. James, 94 App. Div. 257, 87 N. Y. Supp. 976; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181, 184, 84 N. Y. Supp. 669; Smith v. Irwin, 45 Misc. Rep. 262, 266, 92 N. Y. Supp. 170. [3] In the case at bar the plaintiff asks that the dates of the charters be given and the specific reference to their recording. Section 1641 of the Civil Code permits a defendant in an action of this nature to plead its title, but provides that it must do it "as in a complaint for the same cause of action." And section 1639 says a complaint must— "set forth facts showing: 1. The plaintiff's right to the real property; whether his estate therein is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him.” The answer does not give with any definiteness the "source" of the city's title, or the "means" by which it "immediately accrued" to it. It says that defendant's title came through "charters or patents" granted "by the colonial Governors of the province of New York," and also "by virtue of the several Constitutions and laws of the state of New York." Not a date is given; not a name is mentioned; no reference is made that would enable the plaintiff to know really what the city does claim. The language is about as broad and indefinite as could be imagined. What colonial Governor granted the charter? Was it recorded? And where? What law of this state vested the city with title? [4] These and other matters should be stated. Whether the charter or patent was filed or recorded may be material upon the question of the validity of the city's title. It was the law of England that the crown could alienate only by recorded documents. The Duke of York's Laws, promulgated in 1664, provide for such a record. Colonial Laws, vol. 1, pp. 31, 62, 77. This provision was continued in force by the state Constitution. See N. Y. C. & H. R. R. Co. v. Brockway B. Co., 158 N. Y. 470, 53 N. E. 209. And the courts have recognized this difference between grants from the sovereign and from a private individual, holding that the former must be recorded to be valid. McKineron v. Bliss, 31 Barb. 180, 182; Bledsoe's Devisees v. Wells, 4 Bibb (Ky.) 329; N. Y. C. & H. R. R. Co. v. Brockway Brick Co., 10 App. Div. 387, 389, 41 N. Y. Supp. 762, affirmed 158 N. Y. 470, 53 N. E. 209. While no case has been found that relates to the Code sections in question here, or to the situation created by the city's answer, there are a number of authorities which justify and require the granting |