
    Fowler & Banko, Inc., Respondent, Appellant, v. The State of New York, Appellant, Respondent.
    Claim No. 19569.
   A portion of claimant’s road repair and construction contract with the State involved the building of a road in a rocky cut and through a swamp. This required a change in the contract and in the plans and specifications. The Court of Claims allowed claimant $2,047.95, with interest from December 13, 1929. This is increased by three items, (1) $431.25 for additional excavation in the swamp; (2) $1,209.08 for lowering grade in the rocky cut required by the engineer in charge to secure additional material for the deeper excavation ordered in the swamp, and (3) $1,151.50, being twenty-five cents a cubic yard for 4,606.1 additional cubic yards of earth (borrow) from outside sources made necessary by the elevation of the sub-base in the swamp. (Collins v. State of New York, 259 N. Y. 200.) Judgment modified on the law and facts by increasing the recovery to be had by the claimant against the State to the sum of $4,839.79, with interest from December 13, 1929, and as so modified the judgment is affirmed, with costs. The court reverses findings of fact numbered 5, 6, 7, 8, 9 and 10, and disapproves conclusions of law numbered'V and VI contained in the decision. The court also reverses findings numbered 6, 7, 8, 9, 10 and 11 and disapproves and reverses Conclusions of law numbered I, II and III contained in the State’s requests to find. The court makes new findings of fact as requested in claimant’s requests to find in paragraphs numbered 6, 7, 8, 9, 10, 12 and 13, and modifies the finding of fact numbered 11 contained in claimant’s requests to find so that the sum of money therein mentioned is $1,209.08 instead of $1,398.68, and, as so modified, adopts that finding as its own, and modifies finding of fact numbered 14 contained in claimant’s requests to find so that the sum of money therein mentioned is $1,151.50 instead of $2,412.59, and further so that the amount of additional borrow is stated to be 4,606.1 cubic yards instead of 4,830.8 cubic yards, and, as so modified, adopts that finding as its own. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.  