
    Richard Hopkins, Respondent, v. The State of New York, Appellant.
    
      Hopkins v. State of New York, 181 App. Div. 961, affirmed.
    (Argued March 14, 1918;
    decided April 2, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 3, 1918, affirming an award of the Court of Claims. The claimant, a highway contractor, held a contract for the repair of certain highways in Jefferson and St. Lawrence counties, the specifications of which required the application of a top course of bituminous material. The claimant sought to recover an amount alleged as damages sustained by reason of his being compelled to heat the bituminous material before its application, which operation claimant alleged was not required pursuant to the terms of said contract which provided: “It is intended that the bituminous material to be applied to pavement under this contract will not require heating before applying; but should the temperature of the air fall, below 60 degrees F., and if required by the engineer, the material must be heated sufficiently to be properly applied.” Claimant contended that the temperature never went down to sixty degrees during the course of the work, but the oil specified was so thick that it could not be forced through the machine without heating.
    
      Merton E. Lewis, Attorney-General (Edmund H. Lewis of counsel), for appellant.
    
      John N. 'Carlisle for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Caedozo, Pound, McLaughlin and Andbews, JJ.  