
    Michael Levi, Doing Business as Westchester Technical Service, Respondent, v. Power Conversion, Inc., Appellant.
   In an action to recover in quantum meruit for work, labor and services, in which defendant counterclaimed for reimbursement of certain sums expended by it, defendant appeals from a judgment of the Supreme Court, Westchester County, entered June 11, 1974, in favor of plaintiff after a nonjury trial. Judgment reversed, on the law and the facts, without costs, and complaint and counterclaims dismissed. The existence of an express contract in this case, as indicated by the record, negates the possibility of a recovery by plaintiff under a quantum meruit theory (Smith v. Kirkpatrick, 305 N. Y. 66, 73). The express contract did not contemplate separate payment by defendant for services rendered either by plaintiff’s assistant or his part-time designer, and thus plaintiff’s claim for reimbursement for the cost of their services is without merit. In addition, we note that the machine designed by plaintiff and his staff never performed as required by the express contract and as contemplated by the parties. At oral argument of this appeal, defendant Stipulated to withdraw its counterclaims for the moneys expended by it, if this court were to dismiss the complaint. Defendant is held to that stipulatian in view of the determination here reached. Hopkins, Acting P. J., Latham, Cohalan, Brennan 'and Shapiro, JJ., concur.  