Opinion
March 15, 1943.
Action on a contract to recover moneys paid by plaintiff to the city of Long Beach under an agreement permitting him to pay tax arrears in installments, which contract was authorized by statute. Order of the County Court, Nassau County, denying defendant's motion under rule 106, subdivision 5, Rules of Civil Practice, to dismiss the complaint for failure to state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The contract provided that in the event plaintiff defaulted in making any installment payment, all his rights thereunder "shall be extinguished." The complaint alleges that plaintiff defaulted in making the required payments. It thus appears affirmatively from the complaint and the exhibits annexed thereto that the plaintiff, as a matter of law, breached the contract which he invokes as a basis for the recovery of money. It has long been settled that a party may not recover under an executory contract of this character which he has breached. ( Lawrence v. Miller, 86 N.Y. 131, 140.) It was there stated, per FOLGER, Ch. J., "It is declared by this court in Havens v. Patterson [ 43 N.Y. 218], that it is never permitted either at law or in equity, for one to recover back money paid on an executory contract that he had refused or neglected to perform." In Karp v. Ritter Co., Inc. ( 110 Misc. 668, 670), it was stated, per LEHMAN, J., "The rule laid down in that case [ Lawrence v. Miller, supra] is not subject to any exceptions." The principle was given effect in Waldman v. Greenberg ( 265 App. Div. 827, affd. 289 N.Y. 769), and in cases cited therein.
Carswell, Johnston and Lewis, JJ., concur;
The complaint is sufficient to sustain a cause of action for money had and received. The material allegations which justify this conclusion are to the effect that the plaintiff paid and the defendant received moneys to be used and applied for certain purposes, and that the defendant wrongfully failed to use the same for the specified purposes, resulting in the unjust enrichment of the defendant. Plaintiff does not seek to recover under the contract which it is urged he breached.