D'Angelo v. State — 34 N.Y.2d 641

Majority

p. 641

Thomas D’Angelo et al., Doing Business as Triple Cities Construction Company, Respondents, v. State of New York, Appellant.

(Claim No. 50250.)

Argued February 22, 1974;

decided March 28, 1974.

p. 643

Louis J. Lefkowitz, Attorney-General (Richard J. Dorsey and Ruth Kessler Toch of counsel), for appellant.

James B. Gitlitz for respondents.

Memorandum. The order of the Appellate Division should be modified to award interest to claimants on the disputed “ Railroad Protection ” contract item from May 23, 1968, and, as modified, affirmed.

The final estimate was presented by the State on May 23 and absent a showing that the estimate could have been prepared any sooner, interest should be computed from that date and not earlier (see Yonkers Contr. Co. v. New York State Thruway Auth., 25 N Y 2d 1 , 6). Section 38 (subd. 7, par. [g]) of the Highway Law would allow interest starting 90 days after acceptance by the State, namely, April 28, 1968, but was not then in effect (L. 1969, ch. 1044). The interest issue relates only to the fourth cause of action, which is no longer disputed by claimants.

On the main issue, involving the third cause of action, the court holds, as did the Appellate Division, that the contractor’s obligation to pay the railroad for protective labor amounted to sufficient detriment under the circumstances. Moreover, the State’s conduct excused the contractor from any further obligation to perform, thus entitling the contractor to payment.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.

Order modified, with costs to claimants-respondents, in accordance with memorandum herein, and, as so modified, affirmed.

Cases cited

Yonkers Contracting Co. v. New York State Thruway Authority 25 N Y 2d 1 N.Y. 1969-06-04 at 6 p. 643