S. &. D. Explosives, Inc. v. Challenge Building & Design Corp.

34 A.D.2d 747, 310 N.Y.S.2d 106, 1970 N.Y. App. Div. LEXIS 4964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1970
• Status: Published

Opinion

Order entered November 12, 1969, unanimously reversed, on the law, with $50 costs and disbursements to defendant-appellant, and the defendant’s motion for summary judgment dismissing "the complaint granted. The general release given by the plaintiff’s vice-president and secretary on April 24, 1968 operates to defeat the instant action brought by plaintiff to recover for extra work allegedly performed in March, '1968. The release is general in its terms, contains no limitations and provides that it may not be changed orally. No claim is made by plaintiff that the release was procured by fraud or that it was executed under mutual mistake. . It clearly relieves the defendant from liability for the extra work said to have been carried out by plaintiff pursuant to an oral agreement. Admittedly, the subcontract agreement between the parties stated that an order for extra work must be in writing. In addition to the release, the defendant gave to the plaintiff and the latter accepted a final check dated April 24, 1968 which contained the legend “Paid in Full—Wappingers Telephone Co. Extension (B.’” Defendant is entitled to judgment. (Lucio v. Curran, 284 App. Div. 1039, affd. 2 N Y 2d 157; Schoenfeld v. Modern Silver Linen Supply Co., 279 App. Div. 49; Lehrfeld v. Jelineh, 141 N. Y. S. 2d 613 [McNally, J.].) Defendant’s appeal from the order insofar as it granted plaintiff’s cross motion to serve an amended complaint is dismissed as academic. Concur — Stevens, P. J., McGivern, Markewich, McNally and Tilzer, JJ.