(dissenting). Appeal from a judgment disallowing claim against the State for damages arising, it is asserted, because of wrongful acts on the part of the State of New York, its agents and employees, in connection with a contract to furnish material and labor for installation of piping for heat and other service purposes in about 11,000 feet of tunneling which connected a power house with 22 buildings constituting the Wassaic State School. Other contractors were to excavate the trenches, prepare the site and build the concrete tunneling to contain the pipes.
The site was an uneven tract of unimproved land and while claimant was engaged in its contract, work was being done by *726other contractors upon the buildings and power house. Damages chiefly are asked because the tunnel was not built as a single unit, beginning at one end and progressing connectedly to permit the pipes for steam and water, hot and cold, to be installed with continuity.
The main trunk tunnel started from the power house and ran in an easterly direction about 900 feet. Into this came tributaries from the south and east where the buildings were located; also there were three tunnels which furnished heat and service to the operating buildings which joined it at or near the power house.
The rough and uncultivated terrain was covered with work roads and a railroad siding used by all the contractors. The lack of continuity in the tunnel construction about which claimant raises its chief objection was in connection with the 900-foot trunk earlier mentioned. In connection with this it appears that representatives of the State, the tunnel contractor and claimant, after the contract was let but before work was started, conversed and planned that the excavation should begin about 75 feet easterly from the power house site, then progress in a straight line easterly for substantially 900 feet. Work was begun at the place mentioned, and progressed about 200 feet to a point where there was a sharp rise of ground. At this point there was a road and another at. the top of the hill 300 or 400 feet away. It is asserted on behalf of the State and by the construction contractor’s employees that the grade was so sharp the ordinary steam shovel could not be used, and it was necessary to do the excavation with a device known as a back hoe, which worked from the top of the hill down. In further explanation of some delay in this area, there was a requirement that the roads for the use of the contractors should be kept open and usable. There is testimony sustaining the finding that five or six weeks’ seasoning of the completed concrete tunnel was necessary before the earth surface of a road could be laid on top, and before the earth could be removed for a tunnel where the road had been, an adjacent portion of the tunnel must have aged to support the new location. The proof shows that the westerly 200 feet of the trench on the level was completed about the first of May, 1929, the remainder to the east in two installments a week apart in the latter days of July. The contract by its terms was to be finished November 1st.
In the excavation much rock was encountered. Complaint is made that drillers and employees engaged in rock removal *727did not work simultaneously with the earth excavators to effect a continuous construction of the tunnel. An examination of the written records of progress kept by claimant and the other contractors does not indicate unreasonable delay. There is variance between the witnesses produced by the contractors and the State. Some of the oral testimony is uncertain and vague, in part because it was given about eight years after the work was finished. About 8,500 feet of the tunnel had been completed before September, 1929, and the court has found that in August t( there were completed portions of tunnel wherein claimant had not installed its work ”, and also u that the tunnels were herein constructed in as continuous a fashion as the surrounding conditions permitted and in accordance with good construction practice ”, and the evidence sustains these findings.
The claimant cites American Bridge Co., Inc., v. State of New York (245 App. Div. 535) as a controlling authority. The claimant there built the superstructure of the Mid-Hudson Bridge at Poughkeepsie. ' The piers were built by another contractor. The work was delayed for twenty-one months while a pier which had tipped was straightened. The facts there are markedly dissimilar from this case.
Bliss and Brewster, JJ., concur; Hill, P. J., dissents in opinion in which Schekok, J., concurs.
Judgment appealed from reversed on the law and facts and judgment directed for claimant for $115,180.20, with interest from December 24,1930, together -with costs and disbursements.
The court reverses the following findings of fact contained in the decision: Numbers 38, 41, 42, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 62, 63, 64, 70, 73, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85 and 86 and disapproves of conclusions of law Nos. 1, 2 and 3.
The court modifies finding No. 28 contained in the decision by striking out and omitting therefrom the following words: “ subject to the exigencies of the construction of the tunnel and so far as it is practical ”, and also modifies finding No. 57 of the decision by striking out and omitting therefrom the words: “ and through the openings therein left at claimant’s request ”, and also modifies finding No. 69 of the decision by striking out and omitting therefrom the words: ‘ ‘ in so far as it is practical ’ ’.
The court reverses the following findings of fact found at the request of the State: Numbers 12, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, 37, 40, 43, 51, 54, 58, 59, 61, 62, 63, 64, 77, 78, 79, 80, 83, 84, 85, 87, 89 and 90 and disapproves of conclusions of law Nos. I, II, IV, V and VI.
*728The court makes new findings of fact as set forth in claimant’s ■ requests to find numbered 24, 25, 38, 41, 43, 44, 46, 47, 50, 51, 53, 59, 60, 62, 63, 66, 67, 68, 69, 72, 73, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93, 96, 97, 98 and 99.
The court makes the following new finding of fact: That the defendant breached claimant’s contract in that, while failing to properly supervise and direct the order and progress of the general construction work on tunnels and the interior of the power house, and to have the same carried on in accordance with proper construction practice, with some definite program for sequence of operations, as would be necessary to properly co-ordinate the precedent general construction work with the subsequent work of assembling the heating system inside the structures, if claimant was' to be required to follow up the general construction work, and while failing to have the structures constructed in such manner and so maintained as to afford claimant proper sites of work for concurrently assembling piping therein, defendant wrongfully actively interfered with claimant and its methods of performing its work, by ordering and compelling claimant to begin, and to continue assembling its piping and installing its equipment before the structures were in such stage and condition that usual methods of receiving materials and installing the same could be used, and to closely follow up the discontinuous and disorderly general construction work and to complete its work within incomplete structures, in advance of proper progress of the general construction work.
The court makes the following conclusion of law: Claimant is entitled to an award herein against the State of New York for the sum of $115,180.20, with interest thereon from December 24, 1930.