
    (January 9, 1967)
    F. A. Ballard, Doing Business as Fred Ballard Construction Co., Respondent, v. State of New York, Appellant.
    (Claim No. 39892.)
    
   Per Curiam.

If any justification can he found for awarding the subcontractor’s costs plus 5% for overhead and 10% for profit and, in addition, 10% of the resulting total for the contractor’s overhead and 10% thereof for the contractor’s profit, the present record does not demonstrate it. Further, the award is for the total costs with no deduction for the costs which would in any event have been incurred in processing the stockpiles had they been as the contractor, according to his contention, expected to find them. Judgment reversed, on the law and the facts, without costs, and a new trial ordered. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur; Herlihy, J., in the following memorandum: I concur in the result reached by the majority herein. Upon the retrial, the issues of misrepresentation on the part of the State and knowledge on the part of the claimant should be further explored in regard to the merits of this aspect of the action.  