Knoll v. CAPE COD SEA FOOD REST., LTD.

35 N.Y.2d 917 | NY | 1974

35 N.Y.2d 917 (1974)

Waldemar Knoll, Doing Business as Knoll Contracting, Appellant,
v.
Cape Cod Sea Food Restaurant, Ltd., Respondent.

Court of Appeals of the State of New York.

Submitted November 22, 1974. Decided December 20, 1974.

Richard E. Leavitt for appellant.

Dennis M. Beck for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS concur; Judge RABIN taking no part.

MEMORANDUM.

The order of the Appellate Division should be affirmed. Following an adjudication that he failed to prove performance of an express contract both valid and enforceable, a party may not disregard such contract and recover in a separate cause of action for quantum meruit (Foster v. White & Sons, 244 A.D. 368, affd. 270 N.Y. 572; see, also, 50 N. Y. Jur., Restitution, § 105).

Order affirmed, with costs, in a memorandum.