Opinion
December 8, 1966
Appeal from the Court of Claims.
Present — Williams, P.J., Goldman, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously modified in accordance with the memorandum, and as so modified affirmed, without costs. Memorandum: The Court of Claims Judge awarded certain items of damage on the theory that the amounts of damages had been stipulated. We find nothing in the record that may be considered to be such a stipulation. The only stipulation that was entered into was an agreement to reduce the amount of certain claims made by the claimant. This stipulation is not in any way an agreement as to whether damages were sustained or the amount thereof. The Trial Judge made no findings as to damage or amount, but improperly assumed that this was covered by the stipulation. We affirm the determination that item I was properly established as an extra work claim, and that a breach of contract has been proved under items II and VII. We remit these matters to the Court of Claims for determination as to whether there were any damages sustained as to these items, and if so, the amounts thereof. Claim item III was not established, and it should be dismissed on the law and the facts. Items IV and IX were withdrawn upon appeal, and the judgment awarded thereon should be reversed and the claims dismissed. Except as modified herein the judgment should be affirmed. Any findings inconsistent herewith are hereby overruled and reversed.