Opinion
Argued October 13, 1944
Decided December 30, 1944
Appeal from the Supreme Court, Appellate Division, Third Department, FITZSIMMONS, J., and BARRETT, P.J.
Nathaniel L. Goldstein, Attorney-General ( Burns F. Barford, Orrin G. Judd and Arthur W. Mattson of counsel), for appellant.
George M. Simon for respondent.
The State required that the claimant cut back portions of concrete walls in connection with the furnishing of labor and materials necessary for the doing of certain sanitary work in a State building. The finding of the trial court, undisturbed by the Appellate Division, is that the claimant was aware that the extra work thus required was "not part of the work called for by the contract" with the State. Under those circumstances, the first item of the claim for the sum of $641 should not have been allowed, since that which was required was clearly beyond the limits of the contract and "the contractor may [might] not even under protest do it and subsequently recover damages." ( Borough Const. Co. v. City of New York, 200 N.Y. 149, 157.)
The judgment of the Appellate Division should be modified by dismissing item #1 of the claim and, as so modified, affirmed, without costs to either party.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.
Judgment accordingly.