¶1 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.
¶2 Accordingly the judgment should be affirmed, with costs. (See 294 N. Y. 656.)
¶3 Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.
¶4 Judgment affirmed.