sessments shall become operative until the board of esti- 37-9 mate and apportionment or other analogous local authority shall have levied an assessment for the construction thereof, or until rapid transit construction bonds issued by the comptroller under the provisions of this section in advance of the collection of such assessment shall have been sold in sufficient amounts when paid for to cover the cost and expense payable from assessments levied as aforesaid. In so far as any such railroad shall be construed by means of local assessments as aforesaid, the contract for construction shall provide that any sums of money payable thereunder for or on account of such construction shall be payable only from the rapid transit construction fund of such road, and in so far as any such road shall be constructed by means of moneys appropriated by the city the contract for construction shall provide that any sums of money payable thereunder for or on account of such construction shall be payable only from the proceeds of said appropriation. In either event, the contract for construction shall provide that the city shall not be liable to any contractor for any sum or sums payable thereunder, except to the extent of moneys paid or to be paid into such rapid transit construction fund or derived or to be derived from said appropriation.

10. In a case where the moneys collected pursuant to an assessment levied as hereinbefore provided shall be insufficient to discharge the rapid transit construction bonds so issued as aforesaid, or if the amount arising on the sale of such bonds is sufficient to pay the obligations incurred, for the construction of such railroad, the deficiency up to an amount not in excess of ten per centum of the total amount of the assessment shall be paid by such city into the rapid transit construction fund, either from current revenue or from the proceeds of the sale of revenue bonds, corporate stock or other obligations of such city to be authorized and sold as provided in this act, as the board of estimate and apportionment or other such analogous local authority shall

37-10 determine. (Added by L. 1894, ch. 752, § 9, as amended by L. 1895, ch. 519, § 12; L. 1904, ch. 562, § 1; L. 1906, ch. 472, § 8; L. 1906, ch. 607; L. 1907, ch 534, § 1; L. 1908, ch. 472, $2; L. 1909, ch. 498, § 17 and L. 1911, ch. 888)

§ 38. Modification of contracts. The public service commission for and on behalf of the said city in which such road or roads may be constructed, may, from time to time with the consent, in writing, of the bondsmen or sureties of the person, firm or corporation which has contracted with said commission or its predecessors to construct, equip, maintain or operate any road or roads, agree with the said contracting person, firm or corporation upon changes in and modifications of said contract, or of the plans and specification upon which said road or roads is or are to be constructed, but no change or modifications in the plans and specifications consented to and authorized pursuant to section five of this act shall be made without the further consent and authorization provided for in said section. (Added by L. 1894, ch. 752, § 9, as amended by L. 1895, ch. 519, § 13; L. 1906, ch. 472, § 9; L. 1909, ch. 498, § 18 and L. 1912, ch. 226, § 18)

§ 38-a. [Repealed. Laws of 1909, chapter 498, § 2]

§ 39. Acquisition of property. 1. For the purpose of constructing or operating any road for the construction or operation of which a contract shall have been made by the board of rapid transit railroad commissioners or the public service commission, including necessary stations and station approaches, or for the purpose of operating or securing the operation of the same free of interference and right of interference and of action and right of action for damages and otherwise, whether by abutting owners or others, or to provide, lay or maintain conduits, pipes, ways or other means for the transmission of electricity, steam, water, air or other source or means of power or of signals or of messages necessary or convenient for or in the construction or operation of such road, or for the transportation of materials necessary for such construction or operation, or to provide a temporary or permanent way or course for

any such conduit, pipe or other means or source of trans- 39-1 portation, said commission for and in behalf of said city may acquire, by conveyance or grant to said city to be delivered to the said commission and to contain such terms, conditions, provisos and limitations as the said commission shall deem proper, or by condemnation or other legal or other proceedings, as in this act provided, any real estate and any rights, terms and interests therein, any and all rights, privileges, franchises and easements, including such of any thereof as may be already devoted to a public use, whether of owners or abutters, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the commission, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference.

2. The word "property," hereinafter used, shall be deemed to include any such real estate, and any rights, terms and interest therein, and any such rights, privileges, franchises and easements, whether of owners, abutting owners or others. Where any contractor for the construction or operation of such railroad shall require any property for such construction and operation, such property shall be deemed to be required for a public purpose; and with the approval of the public service commission the same may be acquired by the said contractor in all respects as such property may be acquired by the public service commission for the said city, and all proceedings to acquire the said property shall be conducted under the direction and subject to the approval of the commission. It shall be the duty of the commission whenever any property which the city shall have acquired as provided in this act shall be unnecessary for rapid transit purposes, to sell and convey the same in behalf of said city, provided, however, that no such sale or conveyance shall be made except with the approval of the commissioners of the sinking fund of such city or, if there be no commissioners of the sinking fund, then the

39-2 other board or public body thereof having power to sell or lease city property, and provided further that the proceeds of any such sale or conveyance shall, under the direction of the public service commission, be applied either to the purchase of other property necessary for rapid transit purposes or shall be applied in all respects as the payments of rental to be made by the contractor as provided in this act.

3. Whenever the said rapid transit railroad commissioners or the public service commission for and in behalf of the city shall have acquired or shall hereafter acquire an easement in property by conveyance or grant for the purpose of the operation or construction of a rapid transit railroad, the commission may in behalf of the city and as part consideration for the grant or conveyance of the easement, enter into an agreement with the grantor of such casement or right of way, giving to such grantor or his assigns, the right of lateral or other support through, in, or under the said property, or any adjoining lands or space occupied by said rapid transit railroad for any building erected or to be erected upon the land over which the easement or right of way has been obtained for the support and maintenance of any such building or buildings, provided that any structure that shall be built for the support of any such building or buildings shall be approved by said commission and shall not extend in or under any street beyond the curve lines as fixed by the ordinances of the board of aldermen or other legislative body of such city.

4. The commission may temporarily let or allow the use and occupation of any property acquired as provided in this act, and receive rent therefor between the time of the acquisition thereof and the time when the same shall be rquired for construction or operation of said road, or shall be sold as aforesaid, and in case of default of any tenant may prosecute any action or proceeding to recover possession of the premises let or used and occupied as aforesaid. All rent received shall be paid to the comptroller or chief

financial officer of such city, and shall be applied in like manner as the proceeds of sales of property acquired hereunder are directed to be applied in the second subdivision of this section.

5. The existence of an easement acquired for and in behalf of a city under this act shall not be deemed an incumbrance, under any law relating to investments in mortgages upon real property by corporations, trustees, executors, administrators, guardians or other persons holding trust funds, but the effect of such an easement upon the real property which it affects shall be taken into consideration in determining the value thereof. (Added by L. 1894, ch. 752, § 9, as amended by L. 1895, ch. 519, § 15; L. 1896, ch. 729, § 5; L. 1901, ch. 587; L. 1904, ch. 564, § 5; L. 1906, ch. 472, § 10; L. 1909, ch. 498, § 19; L. 1910, ch. 205, § 4 and L. 1912, ch. 226, § 19)

§ 40. Right of commission to enter upon property for purpose of survey; maps and plans to be filed. It shall and may be lawful for said commission, and for all persons acting under its authority, to enter in the day time into and upon any and all lands and property which it shall deem necessary to be acquired, or to which there may be appurtenant rights, terms, franchises, easements or privileges which it shall deem necessary to be acquired or extinguished by said city, for the purpose of making the maps or surveys hereinafter mentioned, and also to enter in like manner and for the same purpose upon any property adjacent to and within five hundred feet of the property to be so surveyed; and the commission shall cause three similar maps or plans to be made of each parcel of property which it may deem necessary so to be acquired, or to which there may be appurtenant rights, terms, franchises, easements or privileges necessary so to be acquired or extinguished, designating each of said parcels by a number, and upon each map or plan so made or in a memorandum accompanying the same and to be deemed part thereof the commission shall cause to be clearly indicated the particualr estate or

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