Elliott v. Prockter Productions, Inc.

282 A.D. 761, 122 N.Y.S.2d 546, 1953 N.Y. App. Div. LEXIS 4913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1953
• Status: Published

Opinion

Plaintiff may not join a cause of action for breach of contract and a cause of action based on an alleged settlement of the cause of action for breach of contract. This is not a matter of pleading but a matter of substantive law. Plaintiff has an election between an action on the contract and an action on an executory accord (Personal Property Law, § 33-a, subd. 3). Plainly he • may not pursue both or present both to the court. The alternatives are not to be presented in a pleading but represent a choice which must be made by the plaintiff in advance of pleading. Orders unanimously modified to require the plaintiff to make an election between the two causes of action and to serve an amended complaint accordingly. Settle orders on notice. Present — Peek,

P. J., Grlennon, Dore, Breitel and Bergan, JJ. [See ante, p. 758.]