(dissenting). The claimant contracted with the State of New York to construct the two main piers of the Mid-*576Hudson bridge at Poughkeepsie. This appeal is from a judgment of the Court of Claims disallowing the claim made against the State for the moneys expended in righting the eastern caisson or pier support. It had tipped over during the attempt to sink it. The caisson, a coliman of concrete, steel and timbers, had been sunk eleven feet into the bed of the river, the top being above high water. It was intended to sink it about eighty feet. From the time it touched the bed of the river it had listed to the west, varying from two feet on June 15, 1927, to a fraction of a foot on July twenty-seventh, when it suddenly tipped to the east, coming to rest at an angle of about forty-five degrees. Claimant asserts that the caisson was being sunk in the manner directed by the accredited representatives of the State, this being in accordance with the contract, but the design furnished by the State was impracticable and unscientific, and it tipped because of inherent instability resulting from an improper distribution of weight which fixed the center of gravity too high to counterbalance the buoyancy and upward thrust of the water, and thus, the State being at fault, it should bear the extra cost. The State answers that the design was proper and that the tipping was caused by the negligence of the contractors in dredging and manipulation. The structure was rectangular, with rounded ends, one hundred and thirty-six feet long and sixty feet wide. The perimeter wall was concrete three and a half feet thick. Longitudinal walls of concrete three feet thick and transverse walls two and a half feet thick divided the interior into twenty-five dredging pockets, five in each end of irregular shape, each having an area of approximately one hundred and sixty square feet, the remaining fifteen in three longitudinal lines, those adjacent to the outside walls having a dimension of twelve by twelve feet, the five through the center being twelve by twenty-four feet. The caisson was cast in vertical sections, the first or bottom section, twenty-one feet high, was cast on Staten Island. The extreme outside of its perimeter wall was incased in a steel jacket three-fourths of an inch thick. The lower edge of the wall, designed to come in contact with the bed of the river, was shod with wood beveled to a cutting edge. False bottoms constructed of large timbers braced from the interior were added to the pockets at the Staten Island plant, making it sufficiently seaworthy to permit towing up the river to the proposed location for the bridge, where it was anchored and also held in place by tugs and scows. The additional vertical sections, in all respects like the bottom section except that the outside steel jacket was replaced with wood, were added as the caisson floated in the river. Their weight caused the structure to sink lower into the water until eventually and about June it rested upon *577the bed of the river, still with a false bottom at the lower extremity of each pocket. On July eleventh vertical sections had been added until the total height was seventy-nine feet, eight feet submerged in the river bed. Reliance was placed upon several agencies to effect the sinking of the caisson: the introduction of water into the dredging pockets to offset the buoyancy of that outside and to permit the unretarded pressure of the structure on the river bottom; the removal of the false bottoms from the dredging pockets, to permit the soil displaced by pressure to fill these pockets and to increase the downward tendency by concentrating the weight of the superstructure on a smaller area; finally by excavation of the soil under the caisson and its removal up through the pockets by means of dredging equipment.
It was intended to permit dredging through each of the twenty-five pockets, if necessary. No caisson as large had ever been so designed. The original plans contemplated that half the pockets should be available for dredging and half for loading, i. e., to be closed at the bottom and filled with a heavy substance which would increase the weight and correspondingly the tendency to sink, and also make for greater stability by lowering the center of gravity.
Lack of stability of the caisson disturbed the State’s engineers and the contractors long before it rested on the river bottom. Claimant’s vice-president, writing the engineers on May seventh, said: " There seems to be some question as to the stability of our caissons at Poughkeepsie. We have got one caisson to 30 feet draft and it apparently is not as stable as it was. I believe Mr. Moran intimated that when we were down 40 feet we would begin to see a variation of stability; and I would like to have the engineering figures from you on this matter of stability.” The letter, further, discusses the necessity for ballast and concludes: “ We can, of course, put in some stable ballast, which probably we would do rather than trust to the water. However, we should like to have the theoretical side of this question figured out, to see where we are at.” On May ninth the State’s engineers, writing the State’s resident engineer, said they were considering the question of stability of the caissons and directed that the perimeter walls be carried up ahead of the interior walls. This would tend to keep the center of gravity low and permit the placing of ballast in the bottom of the caisson without submerging the entire structure. In the letter it is stated: “As it becomes necessary ballast consisting of sand or gravel should be placed in the pockets of the caisson.” On the fourteenth of the same month the engineers wrote to the *578contractors directing that three feet of sand ballast or equivalent be placed in the east caisson, the letter stating: “ In our opinion this ballast should be placed at once and certainly not later than Tuesday, the 17th. Please give this your earnest attention.” When the east caisson came to rest on the river bottom, there was a list of two feet to the west. The list continued, being gradually reduced to a fraction of a foot on the evening of July twenty-sixth. The sudden tipping to the east occurred on that night. There was also a second listing of eight-tenths of a foot to the north. At claimant’s request, the court found: “ On the afternoon of June 15, 1927, at a time when the list of the east caisson was 2 feet to the west, the contractor dredged for several hours along the river bottom, outside of the northeast cutting edge of the east caisson, in the hope that this might eliminate or reduce the said 2-foot list to the west.” With the same evident purpose, the contractor, between July seventh and twelfth, removed the bottoms from three alternate pockets on the east side of the caisson. The bottoms were removed from two center pockets on July thirteenth and fourteenth.
The State Superintendent of Public Works urged the necessity of speed upon the contractor by a letter of June sixth. The engineers in charge did likewise on June eighth. On June tenth the contractor, replying, recited the difficulties that arose through instability. The letter says: “We have had a good deal of experience in sinking caissons, but never before as large a one as these, nor so designed, with no cutting edge and with no stability; and the paramount idea in our minds is the safety of these caissons.” The letter terminates: “ I am writing you at length so that you may know the exact position we are in. We are doing the work in a great measure regardless of expense, our only idea being to make time, but we are in a position right now where we think safety is the governing feature, though we hope soon to be over that part of the work and can then go the whole thing to the limit.” On July eleventh the east caisson had sunk into the river bed only about eight feet, with seventy feet yet to go. The State Superintendent of Public Works summoned the State’s engineers and the contractors to a conference on July fifteenth. The result was summarized in the following instructions: “Mid-Hudson Bridge—■ Conference at Poughkeepsie July 15, 1927. Conclusion; — Bast 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.” The Court of Claims has found: “ The conclusions above set forth constitute an order to the claimant from the State of New York’s accredited representative, which order *579the claimant was bound to follow and comply with.” The court also found that on July eleventh the contractor had already removed the bottom from pocket 11. This is located on the southwest corner of the caisson. On the day of the conference the contractor removed the bottom from another pocket on the west side. Difficulty was encountered in removing the bottoms which were covered by the 600 tons of sand ballast placed by direction of the State in an attempt to make the caisson stable. However, before July twenty-sixth, by the use of dynamite, holes had been punctured in the bottoms of two additional pockets and a third entirely removed, all on the west side. Thus before the accident claimant had obeyed the order that bottoms be removed on the west side to “ correspond to the open pockets on the east side,” and, further, was following the order by continuing to dredge. During the same period bottoms were removed from three center pockets, and on the night of the accident the contractor was also dredging from these. This was specifically approved by an expert who was in the regular employ of the New York Port Authority, but who had been called in during the month of May by the State’s engineers Modjeski and Moran. He was requested to examine the work on this pier and report. He made several visits and reports, attended the July fifteenth conference, visited the pier on July twenty-fifth, about thirty-six hours before the accident, and reported; “ I arrived at Poughkeepsie at noon today. * * * Meantime, mud is being dredged from the center row of pockets in order that the caisson will be rim bearing and not have a tendency to tip either way except as influenced by the dredging. I will endeavor to go up again Friday if other matters will permit.” Between July fifteenth and twenty-sixth the caisson had sunk only one and eight-tenths feet.
The State’s position is epitomized with graphic laconism by the Court of Claims in one of its findings: “ The caisson listed because there was a hole dug under one side of it and the caisson fell into the hole.” In examining the proof to find support for this, we should keep in mind that the total bottom area of the caisson with all the false bottoms in place was 7,380 square feet, and that it had been sunk eleven feet into the bottom of the river, displacing 81,180 cubic feet (almost exactly 3,000 cubic yards) of soil in the bed of the river. Considering the depth of the excavation underneath the three easterly open pockets and the five center pockets, a comparatively negligible amount of this displaced earth had been dredged and removed, thus of necessity it had risen about the outside of the caisson. The State points to the dredging on June fifteenth earlier mentioned, as providing the hole. It will be recalled that the court has found this work was done in an effort *580to prevent disaster by overcoming the list of two feet to the west which existed when the caisson landed on the river bottom. It was found to be “ a trench 60 feet long, approximately 8 feet wide and 9 feet deep adjacent to the caisson in the vicinity of pockets 2, 3 and 4 [these are located on the easterly side] and from which about 150 cubic yards of earth was excavated.” At the time of the disaster the caisson had sunk eleven feet into the river bottom, and was two feet below the bottom of this trench, even if we assume that none of the earth displaced by the sinking had found its way into the trench. In relation to the caisson no hole remained. The only effect of the June fifteenth dredging was to lower the lateral support of earth at the side of the caisson. A structure of this size could not have fallen into the hole twelve by twelve and fifteen feet deep underneath one of the eastern pockets. The other two “ holes on the east side ” each have dimensions of twelve by twelve feet, one three feet deep and the other five. There were only 277 yards of earth excavated from all three of these east side pockets. In both the written and oral arguments of the State it is suggested that the excavations under all the pockets had united through saturation of the clay which separated them. This has no support in the evidence beyond theory and speculation, which I believe disappears with analysis. Seven hundred and seven cubic yards in the aggregate had been excavated from the east and center pockets. A part of this excavation had occurred before the caisson had sunk the entire eleven feet, and with that yardage distributed over the area involved, it would have produced little more of a fist than the caisson had to the west when it first landed on the river bottom. I can give no consideration to the theory that the holes excavated under the several pockets joined with the sixty-foot trench adjacent to the northeast corner of the caisson, as its bottom was two feet above the level at which the caisson was standing. The nature of the soil displacement under the caisson at the time of the tipping is not disclosed in the evidence, it is unknown, probably unknowable, but as I view this case, it is of little importance, for the contract under which this work was being done provided: “ The determination of the engineers, with the approval of the State Superintendent of Public Works, in relation to all matters connected with this contract shall be final and binding upon the contractors. * * * The engineers may stop, by written order, any work or any part of the work under this contract if the methods or conditions are such that unsatisfactory work might result. * * * The accurate location in plan and the vertical alignment of the piers is a matter of the utmost importance. The contractor shall use all necessary precautions and adopt such *581measures as the engineers may direct to gain the desired results. The work shall be so accurately conducted that at no time shall any part of the caisson be more than one (1) foot from its true position. Should this limit be, at any time, exceeded, the contractor shall employ such remedial measures as the engineers may consider necessary.” The Superintendent of Public Works and the engineers, after a conference and consideration, gave specific directions and those were being followed. Bottoms having been removed equally on the east and west sides, the contractor was instructed to dredge. Good sense required that no dredging be done on the west side as the structure was listing in that direction.
Under the conditions disclosed in this case, our authorities require that the unquestioned expenditure incurred by claimant in the righting of this pier should be borne by the State. (Faber v. City of New York, 222 N. Y. 255; Borough Construction Co. v. City of New York, 200 id. 149; Gearty v. Mayor, etc., of New York, 171 id. 61; Mac Knight Flintic Stone Co. v. Mayor, etc., of New York, 160 id. 72.) These authorities are sustained by the dictates of fairness and equity. The State embarked upon this large project for the convenience of the public, with the hope of financial gain which, according to common reports, has been realized from the tolls charged for the use of the bridge. The contractor was subject to a control that was exercised by the State's accredited representatives. They determined the exact type and design of the caisson, they directed the manner in which the work of sinking should be done. The untoward tipping was an incident unexpected, but within the limits of possibility in this venture. The expense of correction should be paid as an extra labor item.
I favor a reversal of the judgment of the Court of Claims in so far as it disallowed the item for the work of righting the pier, and a judgment in favor of the claimant for the amount of the claim, with costs and interest.
Heffernan, J., concurs
Judgment affirmed, with costs.