Opinion
Argued October 10, 1944
Decided November 16, 1944
Appeal from the Supreme Court, Appellate Division, Third Department, DYE, J.
Nathaniel L. Goldstein, Attorney-General ( Orrin G. Judd, Ruth Toch and Saul A. Shames of counsel), for appellant.
Harry Kalman for respondent.
Claimant's failure to comply with provisions of a construction contract requiring notification of the Chief Engineer in writing before performance of work for which extra compensation was recovered in the Court of Claims is here asserted by the State as defeating any such recovery. Our examination of the record convinces us that this defense was not properly raised in the Court of Claims, where the case was tried upon another theory. No other question of law was presented for our consideration.
Accordingly the judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.
Judgment affirmed.