APPEAL by the plaintiff, The Kinser Construction Company, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 17th day of October, 1910, which, although in favor of the plaintiff, is claimed to be for an insufficient amount.
L. Laflin Kellogg and Franklin Nevius, for the appellant.
Thomas Carmody, Attorney-General, and J. A. Kellogg, for the respondent.
November 23, 1906, the above-named construction company and the defendant made a written contract, known as contract No. 27, for the improvement of the Champlain canal between Dunham's Basin road and the Hudson river at Fort Edward in accordance with plans and specifications which formed a part of the contract. The Kinser Construction Company agreed to build three and seventy-six one-hundredths miles of the Champlain canal, and was to be paid therefor by the State as the work progressed in installments according to the amount of work done and materials furnished, and a certain percentage was to be retained until the completion of the entire contract.
The construction company began the work under its contract, and completed quite a portion thereof, and payments were made thereunder by the State. Included in the work agreed to be done was the erection of a lock No. 7, concerning the erection or non-erection of which there was trouble later Various alteration orders were made under the provisions of the contract, and the work was done or partly done under such orders by the construction company, the parties thus giving practical construction to that part of the contract. In November occurred a cave-in or slide of quite a large portion of the bank of the canal at lock No. 7, whereupon the slope at the location of lock No. 7 was changed from one on one as it was to one on three. On December 15, 1908, while the construction
company was excavating for said lock No. 7, another and an immense slide occurred, which let down into the excavation material approximating from 500 to 600 feet long, and from 90 to 100 feet wide, which ran very nearly to the middle of the old Champlain canal, which was eastward of the proposed new canal. It was then found that the material at this lock No. 7 was a slippery, greasy clay, and extended a depth of 40 feet or more below the excavation, whereupon the State on December 18, 1908, halted the construction south of station 1217 by the following letter:
'ALBANY, December 18, 1908.
'KINSER CONSTRUCTION CO.,
'Fort Edward, N.Y. :
'GENTLEMEN.--Owing to the fact that we have under consideration the matter of changing location of lock 7, which may be thrown either to the north or south, which might affect the plans of all work south of station 1217, I deem it for the best interest of the State, and hereby direct you to discontinue all work south of station 1217 until such time as we have new plans perfected.