Opinion
March, 1923.
The principle of Gearty v. Mayor, etc. ( 171 N.Y. 61), applied to the findings of fact made by the Court of Claims would justify a judgment in favor of the claimants for damages occasioned claimants by the breach of contract made by the State in requiring claimants to use two-inch stone for the top course rather than the run of the crusher. However, the findings of fact are unsupported by any proof whatever. There is no proof that the claimants were compelled to use two-inch stone. On the contrary, the proof is that they used such stone voluntarily. Moreover, there is no proof whatever that the claimants were in any wise damaged. No figures from which damages can be reckoned were given by any witness. On the other hand the proof is undisputed that the grading of the stone was necessary in order to enable claimants to obtain correct sizes for surface dressing. We, therefore disapprove of findings 7, 8, 12, 13 and 14, and affirm the judgment. Judgment unanimously affirmed, without costs. The court disapproves of findings of fact numbered seven, eight, twelve, thirteen and fourteen.