Opinion
June 22, 1953.
In an action on a check, defendant appeals from an order granting plaintiffs' motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice, and from a judgment in favor of plaintiffs entered thereon. Order and judgment reversed, with $10 costs and disbursements, and motion denied, with $10 costs. After appellant had stopped payment on the check in suit, which represented the down payment under a contract for the assignment of a lease and purchase of a business, respondents notified appellant that they elected to terminate the contract and to hold him liable for all damages sustained as a result of his breach. Thereafter, and prior to the date set for the closing of said contract, respondents consummated a sale of the subject matter thereof to a third party. The present action was not commenced until subsequent to that sale. In our opinion, by these acts respondents manifested an election to hold appellant for damages for his breach of the contract and could not then sue for a part of the purchase price thereunder. ( Supreme Housing Corp. v. Schreiber, 125 Misc. 817; cf. Palmer v. Golden, 221 App. Div. 360.) The check and the contract were executed and delivered simultaneously and thus constituted a single transaction. ( Hauben v. Waxman, 281 App. Div. 103 1.) Respondents, therefore, have not established that they are entitled to judgment pursuant to rule 113. Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.