
    James W. Kelly, Doing Business under the Name of James I. Kelly & Son, Appellant, v. Board of Education of the City of New York, Respondent.
   In an action by a contractor to recover a balance alleged to be due on a contract for certain sanitary alterations in a public school, the appeal is from a judgment entered on an order granting respondent’s motion for summary judgment dismissing the complaint. The notice of appeal brings up for review the order granting summary judgment. Order and judgment affirmed, with $10 costs and disbursements, on the opinion of the Special Term. Wenzel, Acting P. J., Beldoek, Ughetta and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the order and judgment and to deny the motion, with the following memorandum: A question of fact is presented for trial, namely whether the delay of 121 days for which liquidated damages were exacted was caused by delay of other contractors with whom appellant was required by respondent to co-ordinate his work. The fact that appellant may not recover against respondent for damages thus sustained does not mean that respondent can penalize appellant for delay caused by fulfillment of a contract obligation. [8 Misc 2d 1007.]  