Opinion
July 10, 1967
Judgment of the Supreme Court, Kings County, dated October 17, 1966, modified on the law and the facts, by reducing the award in defendant's favor to $25,783.56, plus appropriate interest. As so modified, judgment affirmed, without costs. In our opinion, the sum of $4,581.89 (comprised of $3,848.35 in charges for extra work performed and $733.54 in escalated labor costs) was improperly included in the award to defendant on its counterclaim for moneys due under the contract. Defendant's vice-president testified that $3,848.35 in charges for extra work were unsupported by written authorizations by the plaintiff as required by the contract. Under the circumstances herein, defendant may not recover for such charges in the absence of such authorizations (City Structural Steel v. Martone, 20 A.D.2d 922). Under the terms of the contract defendant is not entitled to recover charges for escalation of labor costs in excess of $750. There is no evidence that plaintiff waived this provision. Beldock, P.J., Ughetta, Rabin, Benjamin and Nolan, JJ., concur.