Opinion
December, 1928.
Appeal from Supreme Court, New York County.
Present: Dowling, P.J., Merrell, Martin, O'Malley and Proskauer, JJ.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event, because of the error of the trial court in submitting to the jury on the theory of quantum meruit the claims which were admittedly covered by an express contract. It was agreed between the parties that the plaintiff was to build the Orlo III at cost for not more than $6,000, and repair the Orlo II upon the express terms of cost plus stipulated percentages fixed in the written memorandum. Under these conditions the plaintiff could not recover the reasonable value of the work, labor and services and materials, but only the agreed price. As to any items not covered by the contracts, which should prove to be extras explicitly ordered outside of the scope of the contract, a recovery might be had on a quantum meruit. The proof is also insufficient to make competent many of the time sheets, memoranda and accounts which were marked in evidence. The trial was had before the enactment of section 374-a of the Civil Practice Act. Upon a new trial the effect of that statute may be considered.
Added by Laws of 1928, chap. 532. — [REP].
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.