Standard Improvement Corp. v. Village of Ardsley

Judgments modified by dismissing the complaint as to the second cause of action, and as so modified affirmed, without costs, upon the ground that the changes in plans made under the requirements of the defendant’s engineer and for which the plaintiff has been awarded damages did not alter or destroy the essential identity or purpose of the work, for the performance of which the. contract was executed, and were within changes reasonably to be anticipated under the fifth paragraph of the contract between the parties and that paragraph of the specifications captioned “ Change of Plans.” (Del Balso Construction Corp. v. City of New York, 278 N. Y. 154, 160-162; Kinser Construction Co. v. State of New York, 204 N. Y. 381, 391, 394.) No opinion.

*845 Concur: Lough#an, Finch, Lewis, Conwat and Desmond, JJ.; Lehman, Ch. J., dissents from so much of the decision as affirms the recovery upon the first cause of action on the ground that the delay under the first cause of action is not actionable under the terms of the contract. Rippey, J., dissents from so much of the decision as dismisses the second cause of action, and votes to affirm the judgment of the court below.