Opinion
January 21, 1963
In an action to recover (1) payment of a balance allegedly due under a construction contract; (2) for extra work done thereunder; and (3) damages for its breach, the defendant appeals: (a) from an order of the Supreme Court, Queens County, entered April 30, 1962, which granted plaintiff's motion for partial summary judgment of $65,774.65, with interest, on the first cause of action for the balance due under the contract; which severed the remaining 14 causes of action; and which directed that the judgment to be entered on such first cause of action shall provide that acceptance of payment of such judgment shall be without prejudice to the continuance of the other 14 causes of action; and (b) from the judgment of said court entered May 9, 1962, pursuant to said order (Rules Civ. Prac., rule 114; see 33 Misc.2d 1028). Judgment and order affirmed, with one bill of $10 costs and disbursements. In our opinion plaintiff's acceptance of payment, pursuant to the partial summary judgment granted as to the first cause of action, cannot be deemed the equivalent of a voluntary acceptance of payment under the "final payment" clause or under any other term of the contract between the parties. Notwithstanding the provisions of the "final payment" clause, plaintiff's acceptance of the partial payment pursuant to the judgment does not result in the release of its other claims arising out of the contract (cf. Fleder v. Itkin, 294 N.Y. 77). Since there is no triable issue of fact as to the amount which plaintiff concededly earned by its performance under the contract, plaintiff is now entitled to partial summary judgment for said amount and to the payment of such judgment without releasing any other claims which it may have against the defendant based on the contract and without prejudice to its prosecution of such claims. Ughetta, Acting P.J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.