
    Ernest T. Kuhs, Appellant, v. Flower City Tissue Mills Company et al., Respondents, Impleaded with Others.
    
      Building contract — alleged breach in that character of earth to be excavated differed from description in specifications.
    
    
      Kuhs v. Flower City Tissue Mills Co., 190 App. Div. 928, affirmed.
    (Argued June 9, 1921;
    decided July 14, 1921.)
    Appeal from a judgment, of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 27, 1920, modifying and affirming as modified á judgment entered upon a decision of the court on trial at Special Term dismissing plaintiff's second cause of action. The action was to foreclose a mechanic’s hen. The complaint alleged two causes of action, one for a balance unpaid on a contract for the erection of a mill and the second for breach of the same contract in that it was represented that the excavation required would be of earth and gravel while as a fact plaintiff did not find sufficient gravel on the site to do his work and found the excavations to be largely through hardpan.
    
      William W. Armstrong for appellant.
    
      George A. Benton for Flower City Tissue Mills Company, respondent.
    
      William MacFarlane for Fred H. Rapp, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Pound, McLaughlin and Crane, JJ. Absent: Andrews, J. Deceased: Chase, J.  