It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
In 1997 defendant contracted with plaintiff Allesandro Bertoni and Vito Dionisio, who is now deceased, to construct, inter alia, a roadway with a "binder" depth of two inches. A "binder course" is "a coarse aggregate bound with bitumen between the foundation and the wearing course of an asphalt pavement" (Webster's Third New International...
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