The judgment is so just and the defendants’ liability so clear that it is quite immaterial whether or not technical errors were committed by the court upon the trial. The defendants had taken a contract for a State highway, and had given the bond required by law. Under section 43 of the State Finance Law we must assume that a clause was inserted in the specifications and in the contract, prohibiting the contractor from assigning, subletting or otherwise disposing of the contract without the consent in writing of the Department, and that if the contract is sublet in violation of that section, *358it may be terminated by the State, the State relieved from all liability thereon and the contractor shall lose all moneys and benefits earned thereunder “ except so much as may be required to pay his employees.”
The defendants’ evidence as to subletting is not entirely clear. McMahon was unknown to the defendants, and without any inquiry as to his responsibility or standing they, in a way, claim to have sublet the contract to him for ninety-five per cent of the amount called for by it. They had already entered upon the performance of the contract, and had employed two of the assignors who never had any notice of the subletting. There was no written agreement with McMahon, but one of the defendants swears that he made the.agreement for ninety-five per cent of the contract price; that McMahon was to take over the material on hand and the work already done, at cost; that McMahon had twenty-five men to put upon the job and he apparently had but few men, and that McMahon said he had not the ready money and he told McMahon he would take care of the payrolls and pay the expense of moving the men to the work. The payrolls from time to time were made out or submitted to the defendants, the pay envelopes prepared by them, and one of the defendants, or the wife of one of them, was present when the pay envelopes were handed out. Many workmen were paid direct by the defendants’ checks, and implements required for the work were furnished or paid for by the defendants. One of the defendants says: “We have several jobs in that way; jobs that are really done under our contract but were simply sublet to outsiders to handle.” I think that was this transaction. The State paid the defendants for the work; the work was done under the defendants’ contract, but it was being handled by McMahon who received five per cent of the contract price therefor. Neither McMahon nor the defendants ever told any employee that McMahon had taken over the work; apparently McMahon simply took the place of McDonald who was defendants’ former superintendent. I think, therefore, it was proper to show by different employees that McMahon told them he was the superintendent of the defendants and that the defendants would pay. Concededly they were paying the men. If the transaction was not merely *359giving McMahon'five per cent for handling the work, the parties evidently kept the subletting a secret so that there might be a subletting without danger of a forfeiture of the contract therefor. Considering the terms of the statute and all the facts in the case, the judgment is just, and if errors were committed, they could not have changed the result, and do not require a reversal. I favor an affirmance.
Lyon, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.