
    McIntosh Ready Mix Concrete Corporation et al., Respondents, v. R. D. Battaglini Corporation et al., Appellants-Respondents, and County of Broome, Appellant.
   Reynolds, Greenblott, Cooke and Sweeney, JJ., concur; Herlihy, P. J., concurs in the following memorandum: I concur for affirmance, but solely upon what I consider to be the rationale of the trial court’s decision to wit: that after making certain findings of a violation of the requirements of the ASTM C-31 test, the court concluded “it is not just or equitable to penalize the general contractor or the plaintiff, McIntosh, under the present circumstances.”  