Elliott v. Prockter Produtions, Inc.

Plaintiff may not join a cause of action for breach of contract and a cause oE action based on an alleged settlement of the cause of action for breach of contract. This is not a matter of pleading but a matter of substantive law. Plaintiff has an election between an action on the contract and an action on an executory accord (Personal Property Law, § 33-a, subd. 3). Plainly he may not pursue both or present both to the court. The alternatives are not to he presented in a pleading but represent a choice which must be made by the plaintiff in advance of pleading. Orders unanimously modified to…