I dissent in part. I would in all respects affirm the order appealed from upon the opinion rendered at Special Term. In my opinion, the arbitrators were without the power to make the award of $200,000 to Ingardia Construction Co., Inc., for the “ increased cost due to redesign of the contract”. Furthermore Dyker Building Co., Inc., was not bound to anticipate that the arbitrators would make an award beyond their powers, and, bearing in mind that Dyker did eventually take the position before the arbitrators that they had no power to award damages for delay caused by the redesign of the contract, Dyker should not be deemed to have voluntarily submitted the issue to arbitration.
McNally and Steuer, JJ., concur with Valente, J.; Rabin, J. P., concurs in the result on the ground that there had been a submission and trial of the issue determined by the arbitrators; Eager, J., dissents in part in memorandum.
Order entered on October 3, 1960, confirming in part and modifying in part an award in arbitration in favor of petitioner-appellant-respondent, modified to the extent of reinstating the award for increased costs due to the redesign of the contract, and as so modified affirmed, with $20 costs and disbursements to petitioner-appellant.