
    Naclerio Construction Co., Inc., Appellant, v. State of New York, Respondent.
   Appeal by claimant from a decision of the Court of Claims. Decision of the Court of Claims in part reversed, on the law and facts, as follows: Findings in the decision numbered 48, 49, 50, 51, 52,'53, 54 and 56 are reversed. The court finds and adopts- the findings of the Court of Claims contained in “ Claimant’s Requests to Find ” numbered 49, 50, 54, 56, 57, 58, and makes the following finding: That claimant excavated 6,821 cubic yards of rock not provided for in the contract and that the fair and reasonable value for excavating the rock was $3.50 per cubic yard. The court further reverses and disapproves the conclusions of law contained in the decision as follows: 10, 11, 12 and 13. That the court makes the following conclusion of law: That the claimant is entitled to recover for 6,821 cubic yards of extra rock at the rate of $2.67 per cubic yard ($3.50 per cubic yard, proved value of the work, less payment already made of $.83), amounting to $18,212.07, with interest, costs and disbursements. The judgment of the Court of Claims, except as above, is affirmed. Hill, P. J., Heffernan and Foster, JJ., concur; Brewster and Lawrence, JJ., dissent and vote for affirmance.  