On the 2d day of June, 1926, the claimant entered into a contract with the State of New York for the construction of the two main piers of the Mid-Hudson bridge at Poughkeepsie. This claim arises out of an alleged breach of this contract by the defendant. The total contract price was $1,889,925. The contract called for the sinking of two caissons, one on either side of the Hudson river, known as the east and west caissons. They were to be sunk until they reached a suitable foundation in the bed of the river and upon these caissons, after they were in place, were to be erected the piers for this highway bridge. While the work was in progress on each of these caissons the east caisson tipped toward the east to an angle of about forty-five degrees and was thereafter righted and sunk. The principal item claimed by the claimant against the defendant is for the righting of this caisson.
These caissons were designed by Daniel E. Moran, one of the *572leading authorities in the country on bridge and foundation construction. His experience extended for nearly fifty years and consisted of designing and superintending the construction of many different kinds of piers, foundations, caissons, shafts, buildings, pneumatic caissons, canals, dams, power houses, hydraulic developments, docks and other construction works. On caissons alone he had been connected with the designing or construction of over two thousand. On the Mid-Hudson bridge the work was to be done by the open caisson method. These caissons were to be sunk until they reached a level which would afford a suitable foundation for the piers. Each caisson was to be one hundred and thirty-six feet in length, sixty feet in width, rounded at the ends with longitudinal and transverse walls dividing the interior into twenty-five open pockets known as dredging pockets. The lower or base section of the caisson was twenty-one feet in height, its walls constructed of steel plate from three-fourths to seven-eighths of an inch in thickness, the wall filled with concrete about three and one-half feet in thickness, the interior longitudinal walls about three feet and the transverse walls about two and one-half feet thick. The bottom edge of the perimeter wall was beveled upward toward the center so as to form a cutting edge to enable the caisson to cut its way into the river bottom and thus sink to the required depth. The lower sections of the two caissons were constructed some distance from the site. False bottoms braced from the inside were inserted in each pocket and the lower sections were towed to the site and there moored. Additional vertical sections of sixteen feet each were then added from time to time. These sections had an outer form wall of four-inch fir. As these walls were carried up the caissons grew in height and sank deeper into the water. The carrying up of the perimeter walls continued until on June 7, 1927, they were sixty-five feet high and on that date the cutting edge of the east caisson landed on the bottom of the river, which was fifty-six feet deep at this point. Immediately upon landing it listed approximately two feet to the west. It was intended that the bottom of this caisson would finally be located about eighty feet below the river bed. The west caisson was also in due time landed on the river bottom, but it had slipped about eight feet out of position. On July 11, 1927, the walls of the east caisson were seventy-nine feet high, water had been admitted into some of the pockets to give greater weight and the caisson had cut eight feet into the river bottom and listed one foot to the west. On that date a conference was called by Col. Frederick Stuart Greene, State Superintendent of Public Works, to be held in Poughkeepsie on July 15, 1927, for the purpose of having the best possible co-opera*573tion between the engineers and the claimant. This conference was held on July fifteenth. At its conclusion a paper was prepared by the engineers representing the State and handed to the claimant, reading as follows:
“ Mid-Hudson Bridge — Conference at Poughkeepsie
“ July 15th, 1927.
“ Conclusion; — East Caisson.
“ (1) Continue removing bottoms.
“ (2) When the bottoms removed on west side correspond to the open pockets on the east side, begin dredging in pockets and continue dredging until it is safe to remove more or all pockets.
“ Conclusion; — West Caisson.
“ (1) Level up with concrete.
“ (2) Lighten caisson by pumping.
“ (3) Place stone along west side, 1,000 tons (about).
“ (4) Catch on anchor of East Caisson and pull toward east, putting strain on all east anchors.
“ (5) Dredge on east side as necessary.”
At that time the claimant was engaged in removing bottoms from certain pockets of the east caisson. It had removed those from pockets 3, 5 and 7 on the east side, 20, 22 and 24, which were center pockets, and 16, which was a pocket on the west side. It was also endeavoring to remove the bottoms from two other pockets on the west side, viz., 14 and 12. It will be noted that the contractor was to do two things with relation to the east caisson, one, to continue removing bottoms, two, when the bottoms removed on the west side corresponded to the open pockets on the east side it was to begin dredging in the pockets and continue until it was safe to remove more or all pockets. There is testimony on the part of the defendant that Mr. Moran at this conference advised the contractor that there was to be no dredging beneath the cutting edge. This is contradicted by the claimant’s witnesses.
On July 15, 1927, no dredging had been done at the site of the east caisson save a small trench along the northeasterly edge thereof when the cutting edge first landed on the river bottom. After the conference of July 15, 1927, the contractor proceeded to remove bottoms until on the 26th day of July, 1927, he had removed bottoms from three pockets on the east side, five in the center and two on the west side. At that time the bottom of the east caisson had penetrated the river bed approximately eleven feet with a list of four-tenths of a foot to the west. Also, after the conference of July fifteenth the contractor began dredging in the pockets where the bottoms had been removed, and from that date until July 27, *5741927, on which day the caisson tipped to the east, two hundred and seventy-seven cubic yards of earth were dredged from the open pockets on the east side of the caisson, four hundred and thirty cubic yards from the center pockets and none from the west pockets, leaving the west one-third of the caisson, an area of approximately twenty by one hundred and thirty-five feet, resting on solid clay and the earth dredged out from underneath the major part of the center and east sections of the bottom. In addition to that, the trench above mentioned, about sixty feet long, had been dredged along the northeast edge of the caisson just before it reached the bottom of the river. No bottoms were taken out on the west side of the caisson until the twenty-sixth of July. This recital, however, does not present the most serious part of the situation. Holes to certain depths had been dredged beneath the bottom of the caisson through the easterly and center pockets, but more earth had been actually removed from these holes than the depth of the holes indicated, thus estabfishing that the earth from underneath some of the bottoms which had not been removed or from outside of the cutting edge of the caisson was being forced into the holes thus dredged. This left the bottoms of the pockets which then remained in supported by columns of clay, some of them with water on three sides and indicated a movement of the clay underneath the caisson due to the pressure of the water around the outside of the caisson. This reduced the supporting value of the soil by destroying its lateral support. The claimant had in charge of the sinking of this caisson an inexperienced man who ordered excessive dredging. On the night of July twenty-sixth more material was dredged from underneath the bottom of the caisson than on any other single occasion and at about three-thirty on the morning of July twenty-seventh the caisson tipped to the east and reposed at an angle of approximately forty-five degrees. The Court of Claims found “ that the caisson listed because there was a hole dug under one side of it and the caisson fell into the hole.” It is apparent that that is exactly what happened. The Court of Claims also found that the unskillful manner with which the claimant carried on the dredging operation was the cause of the caisson tipping. This finding is amply sustained.
It is contended by the claimant that the memorandum of July 15, 1927, constituted an order from the State to the contractor, that such order was carried out and that this was one of the reasons why the caisson listed. It may be conceded that such was the effect of the memorandum because under the contract the State reserved to itself the right to supervise the method of doing the work. The difficulty with the claimant’s contention with regard *575to this memorandum, however, lies in the fact that it did not comply with the directions therein contained. The Court of Claims has found “ that at no time after the conference of July 15th and until after the caisson listed, did the bottoms removed on the west side correspond to the open pockets on the east side.” This finding is sustained by the evidence.
In addition to contending that the defendant had issued an order which the claimant was bound to obey and that in so doing the damage had been caused, the claimant contended that the caisson was not properly designed in that it lacked stability and that this was the real reason for the fisting of the caisson. The State defends on the ground that the design was proper and claims that the quality of stability was not lacking. In support of its contention, the claimant offered testimony on the part of certain experts to the effect that the center of buoyancy, which is the center of volume of the underwater body, at one stage was lower than the center of gravity and that this caused the caisson to tip. These experts claimed that the caisson was not properly designed to enable it to be lowered to the bottom of the river. Of course, the complete answer to this argument lies in the fact that both caissons were successfully lowered to the river bed. It is true that at one point during the operations, about three feet of sand ballast was added in the bottom of each pocket and that the center walls of the caisson were never constructed as high as the perimeter wall. Be that as it may, each caisson was sunk and the east caisson did not tip until after the claimant had excavated soil from underneath the center and easterly third, leaving the westerly third resting upon solid earth. The Court of Claims has found that the east caisson was stable when floated and was stable when it landed on the bottom of the river.
There is no difference of opinion between the members of our court upon the law of the case. The majority readily concede both that the memorandum of July 15, 1927, constituted an order and that the contractors might rightfully presume that the body of the caisson was proper in design and possessed the quality of stability. The entire question with relation to this claim is one of fact. The facts have been resolved by the court below in favor of the defendant. These findings are borne out by the record. There was no breach of the contract by the State. The judgment of the Court of Claims dismissing this item was proper and is affirmed.
McNamee and Crapser, JJ., concur; Hill, P. J., dissents, with an opinion, in which Heffernan, J., concurs.