
    Sam Kaufman and Harry Kaufman, Copartners, Doing Business as Kaufman Brothers, Respondents, v. Morris S. Tremaine, as Comptroller of the State of New York, and Another, Defendants; Charles M. Leahy, Doing Business under the Name of Stanhy Construction Company, and Seaboard Surety Company, Appellants.
   Judgment of the County Court of Suffolk county reversed on the law and the facts and a new trial ordered, costs to abide the event. There was no competent proof of the quantities of material removed in excavating under the contract. It should be a simple matter to prove the cubic yards contained in the section excavated by plaintiffs, either by the monthly estimates of the engineer in charge of the work, or by computation by one skilled in such practical matters. Failing this, the plaintiffs, should be able to show the number of loads removed and the cubical contents of each load. This record furnishes no proof by which we may determine the amount of yardage, and, therefore, there must be a new trial. All findings of fact are reversed. Lazansky, P. J., Young, Tompkins and Davis, JJ., concur; Scudder, J., not voting.  