The plaintiff brought this action to recover the sum of $4,364 paid to the defendant under protest, said sum being the cost for removing part of a concrete bank or vault, conduits and ducts containing electric cables, to enable plaintiff to connect a sewer line from a building erected by plaintiff, to the city sewer.
In 1923 Consolidated Telegraph & Electrical Subway Co. made application to the City of New York, Department of Water Supply, Gas and Electricity, Borough of Manhattan, for a permit to construct electrical subways on the west side of Avenue A from southwest 60th Street to southwest 92nd Street and filed plans with said application.
On May 12, 1923, the City of New York, Borough of Manhattan, Commissioner of Public Works, issued permit No. 111893 to said company to open the pavement of Avenue A from the south side of 61st Street to the south side of 62nd Street to lay a main conduit.
A concrete bank or vault to contain the conduits, ducts and cables, was completed by defendant's predecessor on October 20, 1923 and approved by the New York City Department of Water Supply, Gas and Electricity Borough engineer, as to location, size and number of conduits.
On March 20, 1928, Avenue A in the area involved, and south thereof, was renamed York Avenue.
Subsequently, by statutory merger, the Consolidated Telegraph & Electrical Subway Co. became part of the Consolidated Edison Co. of New York, Inc., which corporation assumed all of the assets, rights and liabilities of Consolidated Telegraph & Electrical Subway Co. In 1960, plaintiff acquired property on the southwest corner of 62nd Street and York Avenue, running 100 feet west on 62nd Street and 100 feet south on York Avenue, upon which it erected a 19-story apartment building.
Plaintiff did not dig test pits to determine the location of any subsurface structures either on the York Avenue or 62nd Street sides of its property prior to drawing the plans for said building.
In attempting to connect the sewer line from the building to the city sewer on York Avenue, plaintiff ascertained that the concrete vault or bank containing conduits, ducts and cables, was parallel with and between the building line and the city sewer.
Plaintiff could not connect to the city sewer on 62nd Street or York Avenue, due to the cellar of the building constructed by plaintiff being below the level of the city sewers, as a result of which plaintiff could not comply with the city departmental codes requiring gravity emptying of the building sewer line into the city sewers, unless part of the concrete vault or bank and the conduits and cables were removed to permit the sewer line from the building to be connected to the city sewer.
Plaintiff negotiated with defendant for the removal of part of its underground facilities and agreed to pay the cost thereof under protest, to enable the connecting of the sewer line from the apartment building to the city sewer on York Avenue without changing the plans for the erection of said building.
Plaintiff makes no claim of title to the bed of the street or any part east of its building line, nor that the construction and maintenance of the concrete vault or bank and the conduits and ducts, violate any rules, regulations or statute.
Plaintiff contends that, as an abutting owner, it had an inherent right to use the city sewer, and the construction and maintenance by the defendant of its afore-mentioned facilities where it was located, was in violation of its rights.
Defendant's predecessor was, and defendant is, a transportation corporation as classified under subdivision 1 of section 2 and defined under section 10 of the Transportation Corporations Law. Defendant's powers are set forth in subdivision 3 of section 11 thereof as follows: "An electric corporation and a gas and electric corporation shall have power to generate, acquire and supply electricity for heat or power in cities, towns and villages within this state and to light the streets, highways and public places thereof and the public and private buildings therein, and to make, sell or lease all machines, instruments, apparatus and other equipment therefor, and for transmitting and distributing electricity to lay, erect and construct suitable wires or other conductors with the necessary poles, pipes or other fixtures in, on, over and under ...