The State required that the claimant cut back portions of concrete walls in connection with the furnishing of labor and materials necessary for the doing of certain sanitary work in a State building. The finding of the trial court, undisturbed by the Appellate Division, is that the claimant was aware that the extra work thus required was “ not part of the work called for by the contract ” with the State. Under those circumstances, the first item of the claim for the sum of $641 should not have been allowed, since that which was required *8 was clearly beyond the limits of the contract and “ the contractor may [might] not even under protest do it and subsequently recover damages. ” (Borough Const. Co. v. City of New York, 200 N. Y. 149, 157.)
The judgment of the Appellate Division should be modified by dismissing item #1 of the claim and, as so modified, affirmed, without costs to either party.
Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.
Judgment accordingly.