Opinion
Submitted November 22, 1974
Decided December 20, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES J. CRISONA, J.
Richard E. Leavitt for appellant.
Dennis M. Beck for respondent.
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 App. Div. 368, affd. 270 N.Y. 572; see, also, 50 N.Y. Jur., Restitution, § 105).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS concur; Judge RABIN taking no part.
Order affirmed, with costs, in a memorandum.