
    James Stewart & Company, Inc., Respondent, v. State of New York, Appellant.
    (Argued June 21, 1927;
    decided July 20, 1927.)
    
      State —• contract — claim for variance between material to be excavated as indicated on plans and that actually encountered.
    
    
      Stewart & Co., Inc., v. State of New York, 218 App. Div. 810, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1926, unanimously affirming a judgment in favor of plaintiff entered upon an award of the Court of Claims. The claim arose out of a Barge canal contract for excavation at Hinmansville Cut '.and arose from a variance between the character of the material to be excavated as indicated by the plans and that actually encountered in the performance of the work.
    
      Albert Ottinger, Attorney-General (Albert J. Danaher and James Gibson of counsel), for appellant.
    
      Almuth C. Vandiver for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Absent: Kellogg, J.  