| N.Y. App. Div. | Oct 4, 1960
Appeal from order, entered March 30, 1960, insofar as it denies motion to dismiss the complaint, unanimously dismissed as moot. Order, entered June 3, 1960, insofar as it denies the motion to dismiss the amended complaint under subdivision 6 of rule 107 of the Rules of Civil Practice, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs, and judgment directed in favor of defendant dismissing the amended complaint, with costs. The contract provided that the making and acceptance of final payment should constitute “a waiver * * * of all claims by the Subcontractor, except those previously made and still unsettled.” It is undisputed that on or about January 15, 1960, plaintiff sent defendant two invoices, one marked “Final Payment ”, and that on or about January 23, 1960, payment was made and accepted in the aggregate amount of the invoices. No facts are stated in the opposing affidavits on either motion which tend to show that at the time of final payment unsettled claims existed which had been made by plaintiff prior thereto. Nor are there any evidentiary averments relating any prior negotiations to the legal claims expressed in the amended complaint. The letter dated December 13, 1957, is a plea for relief from the contract, not an assertion of claims under the contract. Accordingly, there is no factual issue requiring a trial. Concur — Botein, P. J., Breitel, Rabin, Valente and Eager, JJ. [23 Mise 2d 349.] [See post, p. 986.]