Order entered June 25, 1965 denying petitioner's motion for judgment and judgment entered July 30, 1965 dismissing the petition in this article 78 proceeding unanimously affirmed, without costs or disbursements. We appreciate the candor of the Corporation Counsel in conceding the variance between Specification No. 1 and the proof. The hearing proceeded on the theory that petitioner overcharged in that his employees arrived later than the time from which the charges were computed and they unnecessarily delayed and prolonged the work. All parties understood the nature and extent of the charges and the petitioner makes no point of the variance. We do not find it necessary to resolve the statutory construction questions raised by the appellant, by reason of the fact that there was no departure from the effective tariff.
Concur — Steuer, J.P., Capozzoli, Tilzer, McNally and Bastow, JJ.