Third Department, November, 1920. * * * [Vol. 194. It was nothing more or less than the gratification of his personal feeling of animosity. This seems to have been clearly an injury which did not arise' out of' the employment. It was rather outside of the employment, and one which grew out of a situation inaugurated by the injured employee himself for his individual purpose." In Matter of Verschleiser v. Stern & Son (229 N. Y. 192) a fellow-servant of the claimant in fun dropped a piece of flesh down the claimant's neck when his back was turned. The claimant turned around and struck another fellow-servant, supposing him to have been his tormentor. The man assaulted then kicked the claimant, causing him serious injuries. Notwithstanding the fact that as between the two employees the law of assault would have pronounced the claimant "the aggressor," an award to claimant was sustained. In the course of its opinion the court referred with approval to the decision in the Griffin case, and to the words of Mr. Justice COCHRANE contained in his opinion therein, and, among other things, said: "If the servant had left his employment and was willfully pursuing designs of his own he would not be entitled to compensation. The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault or insult, reacts and in self-protection strikes another." In Matter of Leonbruno v. Champlain Silk Mills (229 N. Y. 470) Judge CARDOZO said: The test of liability under the statute is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk." In our case the claimant called his foreman " “a liar" while the foreman, acting in te line of his duty, was merely giving the claimant needed instructions. It was a word of insubordination spoken in injury of his master's business and destructive of his master's proper discipline. In speaking it the claimant created a risk not before existing, and thereby drew down upon himself precisely that which he should have expected. He thereby voiced his own personal animus, and did not intend to further the service of his employer. Even in the law of assault the action of claimant in thus speaking would be regarded as constituting provocation sufficient to mitigate damages. For these reasons I think that the claimant App. Div.] provoked, instigated and procured the assault, and, therefore, was neither injured by his employment nor within his employment when injured. The award should be reversed and the claim dismissed. All concur, except JOHN M. KELLOGG, P. J., and COCHRANE, J., dissenting. Award reversed and claim dismissed. BELMAR CONTRACTING COMPANY, INC., Appellant, v. THE STATE OF NEW YORK, Respondent. Third Department, November 18, 1920. Highways-acceptance of bid by Highway Commission for construction of road as completing binding contract acceptance of bid as agreement to enter into formal contract-liability of State for damages caused to contractor by its delay in executing road construction contract after approving same-performance of contract afterwards as waiver of breach-conversation between contractor and division engineer not constituting new contract. The plaintiff having submitted a bid for the construction of a highway and having complied with all the requirements of the published notice calling for bids, and the State, through its Commission of Highways, having notified the plaintiff in writing that it was the lowest bidder and directed it to make arrangements to execute the formal contract at once, there was an enforcible agreement between the plaintiff and the State, independently of the execution of a formal contract. If, however, under section 130 of the Highway Law, it was a necessary prerequisite to the agreement, regarded as an agreement to make a highway improvement and pay therefor, that a formal contract embodying the terms of the agreement should first be subscribed by both parties, then the agreement made was nevertheless a binding agreement to execute a formal contract. The plaintiff having executed the contract and furnished the required bond, which were approved by the State Highway Commissioner and the State Comptroller, the refusal of the State to permit it to commence the construction of the highway constituted a breach if the contract is regarded as a binding one for a highway improvement, or the refusal of the Highway Commission promptly to execute the contract constituted a breach if the contract is to be regarded as a preliminary contract to enter into a formal contract. Third Department, November, 1920. (Vol. 194. The contract in question called for the laying of an asphalt dressing over broken stone and for extensive concrete curbing and it was executed by the plaintiff on the first day of September and was approved by the Highway Commissioner and the Comptroller before the middle of September but was not formally executed by the Highway Commission till October twentieth and the delay caused by the Highway Commission failing to execute the contract so postponed the work that performance prior to the following spring was rendered impracticable if not impossible, and hence the damages accruing to the plaintiff through the increased cost of construction incident to the delayed work were caused by the delays created by the Highway Commission. The plaintiff by commencing performance of the contract in the following spring waived the breach of the contract to the extent that the breach would have justified its own abandonment of the contract and a suit for lost profits to be gained by timely performance, but it did not waive the breach in the sense that it could no longer sue to recover damages caused thereby. In a conversation between the president of the plaintiff and the division engineer of the Highway Commission in the fall to the effect that it was then too late to complete the work and that the work ought to be left till spring, no new promises were entered into, no new consideration was given or promised, and no alteration of the existing contract was made; consequently the previously broken implied obligation of the State not to delay claimant was upon that occasion neither released nor satisfied. COCHRANE, J., and JOHN M. KELLOGG, P. J., dissent, with opinion. APPEAL by the claimant, Belmar Contracting Company, Inc., from so much of a judgment of the Court of Claims, entered in the office of the clerk of said court on the 16th day of March, 1920, upon the decision of the court as decrees and adjudges that claimant is not entitled to an award and judgment against the defendant for damages arising from the failure of the defendant to permit the claimant to construct a certain highway in the fall of 1915. Ainsworth, Carlisle & Sullivan [Charles B. Sullivan of counsel], for the appellant. Charles D. Newton, Attorney-General [Carey D. Davie of counsel], for the respondent. H. T. KELLOGG, J.: On or about the 5th day of August, 1915, the State of New York, through its Commission of Highways, published a notice to contractors calling for bids for the improvement of one and seventeen one-hundredths miles of highway in the city of App. Div.] * Hudson, in the county of Columbia. The notice stated that maps, plans, specifications and estimates might be seen, and proposal forms might be obtained at the office of the Commission of Highways. It called "the especial attention of bidders" to the "information for bidders," the "specifications" and "contract cgreement" which were on file. The "information for bidders" to which attention was thus called in its first sentence provided that "the 'specifications' and 'contract agreement' adopted September 15, 1914, by the New York State Commission of Highways are to be considered as and shall form a part of the contract." It also provided that "Within ten days from the date of notice of award, the person or persons whose proposal is accepted will be required to execute the contract and furnish bonds for its faithful performance." The claimant made a bid for the contract upon a printed form entitled "itemized proposal" and therein made the following declaration: "The undersigned also hereby declare that he had or they have carefully examined the plans, specifications, form of contract, and understands that in signing this proposal he or they waive all right to plead any misunderstanding regarding the same." The claimant also declared that it agreed " to do and perform all the work necessary under the aforesaid conditions to complete the improvement of the aforementioned highways." On the 25th day of August, 1915, the claimant was notified in writing by the Highway Commission that it was low bidder and was directed to make arrangements to execute the contract agreement at once. On September 1, 1915, the claimant executed the formal contract for the highway improvement tendered to it by the Commission of Highways, which it must be assumed was the very contract which the "information for bidders " referred to, and which the claimant in its "itemized proposal had asserted that it had " carefully examined." The claimant also submitted a bond for the performance of the contract which was satisfactory to the Commission of Highways. Thereupon Edward Duffy, Commissioner of Highways, wrote the letters "O. K." at the foot of the contract executed by the claimant, and beneath these letters subscribed his initials "E. D." Subsequently, on the 14th day of September, 1915, one W. I. Lee, Deputy Comptroller of the State of New York, approved the contract by the following words written there Third Department, November, 1920. [Vol. 194 upon: Approved Sept. 14, 1915, under the provisions of Chapter 342, Laws of 1913."* Notwithstanding the execution of the contract by the claimant, the filing of a bond by it, the "O. K." of Commissioner Duffy, and the approval of the Comptroller, the contract was not thereafter formally signed by Commissioner Duffy until October 20, 1915. The reason for the delay given by officials of the Highway Commission was the fact that the city of Hudson had not until then made available its share of the moneys to be paid for the improvement. There was no provision of law requiring that the execution of the contract should be withheld until such a time. Moreover, the approval signed by the Comptroller on September 14, 1915, conclusively established that at this time all the necessary moneys were then on hand. After the contract had been executed by it the claimant repeatedly applied to the Commission of Highways requesting that it execute the contract, and was repeatedly told by its officials that they would get the same executed shortly, but that the city of Hudson was holding them up. The "information for bidders" provided that "The work proposed under this contract must be completed on or before the eightieth working day." The formal contract provided that time was of the essence of the contract, and that the contractor must pay ten dollars per day for each day's delay in the performance of the work. Owing to the delay of the Highway Commission in appending its formal signature to the contract, or its delay in granting to the claimant permission promptly to begin work, the claimant was compelled to postpone operations until the spring of 1916, when it performed the contract at an increased cost as found by the Court of Claims of $10,716.05. It is undisputed, and was found by the Court of Claims, that if the contract had been promptly signed by the Highway Commission, and if claimant "had been permitted to begin construction within a reasonable time after claimant's contract agreement and bond had been delivered and accepted by the Highway Commission, and approved by the Comptroller it would have had time to complete the contract in the fall of 1915. The claimant having performed its contract in the |