
    James F. Leary and Thomas J. Morrison, Respondents, v. City of Watervliet, Appellant.
    Judgment and order affirmed, with costs, on the opinion of Rudd, J., at Trial Term (Reported in 97 Misc. Rep. 127). All concurred, except Kellogg, P. J., who dissented in memorandum.
   Kellogg, P. J.

(dissenting): The proposal of the contractor, which is a part of the contract, provides that the plaintiff “ has carefully examined and fully understands the contract, plans and specifications hereto attached, and has made a personal examination of the site of the proposed work and the character of material to be encountered.” Section 34 of the specifications, also a part of the contract, provides: “ The contractor shall take all responsibility of the work, shall bear all losses resulting to him on account of the amount or character of the work, or because the nature of the land in or on which the work is done is different from what is assumed or was expected, or on account of the weather, floods or other causes,” etc. These provisions, in my judgment, prevent a recovery.  