Elliott v. Prockter Productions, Inc.

Plaintiff may not join a cause of action for breach of contract and a cause of 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. *762Plaintiff 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 be presented in a pleading but represent a choice which must be made by the plaintiff in advance of pleading. Orders unanimously modified…