The question here is whether the State has been guilty of any wrongful act toward the claimant, from which it has waived immunity; and, therefore, whether it has become hable in damages to the claimant. The State made contracts for the construction of the Mid-Hudson bridge at Poughkeepsie. One of these contracts was for the substructure consisting of piers in the Hudson river; a second contract was made with the claimant for the erection of the superstructure to rest on the piers. The piers were to have been completed on September 1, 1927, and the superstructure on February 1, 1928. When partly erected one of the piers tipped. It was estimated by the officials of the State and the contractors involved that this pier could be righted in about one hundred days, but in fact it took twenty-one months. Claimant’s work could not be commenced until the piers were in place, and its time for completion of its work was extended to December 8, 1930, three months longer than was necessary.
The original claim herein made against the State was verified January 21, 1932, was based upon the negligence of the State, and it was charged that “ by reason of the failure of the State to perform its part of the contract in the preparation and completion of the substructure,” the claimant was damaged. It was several years after this alleged failure that claimant reached the conclusion that it was not damaged by the negligence of the State in failing to deliver the site, but by an act wholly unrelated to the performance of its contract with the State.
The claimant now contends, and the prevailing opinion states, that the claimant was not injured by delay, but by the “ active interference ” of the Superintendent of Public Works with the conduct of claimant’s business. Under its contract the claimant agreed to furnish all of the materials, machinery and labor for the erection of the superstructure on the piers. There is no provision in the contract specifying where or how the claimant should procure *543these materials and this machinery. But the contract contained this provision: "It is expressly understood and agreed that no claim shall be made against the State for any damage due to delays in the completion of the Main Piers which are constructed under another contract.” This provision makes evident the necessity on the part of the claimant to alter its claim.
The claim was accordingly amended in such a way as to allege that the claimant was required by the State to continue the fabrication of its steel for the superstructure without interruption, after the pier tipped, so as to have it ready for use on the site when the pier was ready. And because of this requirement, it is alleged, the claimant procured the fabrication of its steel sooner than was necessary for actual use in the bridge; and that this early fabrication necessitated storing the steel outdoors, and painting it a second time, and the consequent expense and damage. Of course, the contract in no way provided for the fabrication of the steel at any particular time before delivery; and no one suggests that any such written order was issued. The State was concerned only with the delivery of the steel on the site, and with its erection, as specified.
I have found nothing in the record, in either brief, or in the prevailing opinion, which points to any fact in support of the contention of the claimant. It is said and reiterated that statements made by the State’s Superintendent, after the pier had tipped, furnish such support. When this accident occurred, a conference was held by those concerned in the contracts, and it was thought that work might again proceed in about three months. The testimony of the Superintendent, called as a witness by the claimant, was to the effect that he gave no order to discontinue the fabrication of the steel, but “ asked ” the claimant to continue the fabrication so as to be ready when the pier was righted and completed; and he answered affirmatively the leading question, whether he had not " instructed ” the claimant accordingly. There is some other similar testimony to the same end. It is the facts related in this testimony that form the basis for claimant’s judgment of $62,783.11. It is from the proof of these statements that the language of the judgment, the findings, the briefs, and the prevailing opinion, at varying places in the record, justifies the contention of the claimant that the Superintendent “ requested,” " instructed,” “ directed,” " required,” " insisted,” and “ ordered ” that the steel in question be fabricated in anticipation of the time it was needed for use in the bridge.
It is true that the Superintendent of Public Works made many statements evidently intended to support the claim, but they had *544nothing to do with the performance of the provisions of the contract. And after urging upon the court the excellence of the claimant as a contractor, and the justice of the claim, he admitted that “ owing to the restrictions of the law we could not pay it outright.” As I read the record, the Superintendent was correct in this latter particular, and I am persuaded that legally he could not pay the claim outright or otherwise.
It will be observed that the claimant rendered no service to the State of New York, nor did, nor refrained from doing anything for the State that was not required by its contract. It is clear that the contract provisions, or the interests of the State, were in no way related to the place where, the time when, or the manner in which the claimant fabricated the materials to be delivered on the job as specified. The Superintendent gave no order in reference thereto in any manner permitted by the contract; and when he assumed to make “ requests,” or to give “ instructions,” if he did, as to the conduct of claimant’s business prior to the time at which any interest of the State attached, they were personal acts for which the State was in no way responsible. The State’s interests were defined by the contract. And the suggestion that the claimant contractor complied with the requests of the Superintendent, because of fear of retaliation or unjust treatment by the Superintendent if it did not, involves not only unjustifiable implications, but is without any support in the evidence. But if it were true that claimant’s conduct was actuated by fear, it did not create a liability on the part of the State.
By section 12-a of the Court of Claims Act the State waives immunity from liability for the torts of its officers, and from all claims for injuries to person or property caused by the misfeasance or negligence of its officer, while acting as such, and assumes that liability. In so far as this case is concerned, it waived its immunity and assumed liability in no other particular. And section 26 of that act prohibits liability by implication, and prohibits awards against the State except upon legal evidence. Here the primary and evident cause of claimant’s damages, as the claimant itself at first alleged, was the delay due to the tipping of the pier; and the State was in no way responsible for the tipping, or for the delay, because it was not due to the tort of a State official, and, in addition, the contract provided otherwise.
No official order was given touching the fabrication of the steel, nor was any requirement exacted with reference thereto, in any manner permitted by the contract. Even if a request, an instruction, or an order of the Superintendent were actually given or made in the manner prescribed by the contract, or in any other substantial *545manner, it in no way altered the obligation of the claimant to have the steel ready when required. The time, place or the manner of fabrication of the steel specified was not provided for in the contract, and the State had no interest therein prior to delivery. The Superintendent of Public Works cannot bind the State, even if he wishes to do so, as to matters with which the State is not concerned.
By a divided court we have already held (and the Court of Appeals unanimously affirmed the holding) that the tipping of the pier mentioned was not the fault of the State, but of the contractor who erected it; although that case was decidedly more plausible than the one at bar. There the same kind of a claim was made, and the same grounds alleged as here, viz., that the contractor was improperly directed by the Superintendent to follow a course which resulted in damage. (Blakeslee Rollins Corporation v. State of New York, 239 App. Div. 571; affd., 265 N. Y. 567.) In that case, although this court held that the written instructions were an order given by the Superintendent to the contractor, but disobeyed, the Court of Appeals did not indicate in its decision that it regarded the writing as an “ order ” within the contemplation of the contract. Of course, whether there was no order, or an order disobeyed, the legal effect would be the same. That order, if it were one, was in writing, had to do with and was given in the progress of the actual work on the site. In this case the alleged request or instruction was not in writing, had nothing to do with the work on the site, and it had neither substance nor form to give plausibility.
There is no proof in the record that the State violated its contract, or interfered with its performance, or that any State official was guilty of any tort, misfeasance or negligence while acting as such officer. The judgment should be reversed, and the claim dismissed.
Judgment affirmed, with costs.