
    Waldemar Knoll, Doing Business as Knoll Contracting, Appellant, v. Cape Cod Sea Food Restaurant, Ltd., Respondent.
    Submitted November 22, 1974;
    decided December 20, 1974.
    
      
      Richard E. Leavitt for appellant.
    
      Dennis M. Beck for respondent.
   Memorandum. The order of the Appellate Division should be affirmed. Following an adjudication that he failed to prove performance of an express contract both valid and enforceable, a party may not disregard such contract and recover in a separate cause of action for quantum meruit (Foster v. White & Sons, 244 App. Div. 368, affd. 270 N. Y. 572; see, also, 50 N. Y. Jur., Restitution, § 105).

Ohief Judge Breitel and Judges Jasen, Oabrielli, Jones, Wachtler and Stevens concur ; Judge Rabin taking no part.

Order affirmed, with costs, in a memorandum.  