I dissent and vote to affirm. I am of the opinion that there is ample evidence in the record to support the trial court’s finding that the State was responsible for the delays in claimant’s work caused by the inactivity of the railroad.
The record demonstrates that claimant had finished the embankment for the railroad detour on July 15, 1960, whereupon it proposed to do all the work for the new bridge site between that date and April of 1961, its work ¡schedule calling for about seven months to complete that part of the project. The railroad did not start its track work, however, until September 22, 1960, and did not complete the placing of its tracks on the temporary detour and removal of the main line tracks until April 18, 1961. On February 1, 1961 claimant shut down its work until April 3, 1961 when it was again resumed. The uncontradicted proof is that this was due solely to the fact that the railroad had not progressed its work to a point enabling claimant to do more of its work.
The new bridge to carry the tracks was ready for the placing of tracks on January 11, 1962. However, because the railroad wanted to wait ‘1 until the frost was out- of the ground ’ ’ it. did not relocate its tracks from the temporary detour to the new bridge until April 18, 1962. This caused further delay in claimant’s work in this area. During both periods of delay several letters were written to the State by claimant complaining, of the delays and interference. The contract provided that all work affecting the railroad’s right of way facilities was to be carried out under the joint supervision of the Department of Public Works and the railroad company. I disagree with the majority -and find that upon this record the delays are ■attributable to the State due to its failure to require the railroad to co-ordinate its portion of the work with claimant’s. (See Forest Elec. Corp. v. State of New York, 30 A D 2d 905.)
*236Herlihy, P. J., Reynolds, Staley, Jr., and Simons, JJ., concur in Per Curiam opinion; Sweeney, J., dissents, and votes to affirm, in .an opinion.
Judgment reversed, on the law and the facts, without costs, and claim dismissed.