Milman v. Denniston , 271 A.D.2d 988 ( 1947 )

Action for specific performance in respect of certain real property in Queens County. Order granting defendant’s motion for summary judgment and the judgment entered pursuant thereto dismissing the complaint, unanimously affirmed, with $10 costs and disbursements. Neither the second informal agreement dated August 28, 1943, nor the formal lease of August 30, 1943, executed by both parties pursuant thereto, contained any reservation, express or implied, of any of the rights or terms contained in the first “ receipt agreement ” of August 28, 1943, which original agreement was the subject of a mutual rescission ; hence recourse to that original “ receipt agreement ” may not be had. (MeCreery v. Day, 119 N. Y. 1, 5.) The execution of the second agreement dated August 28, 1943 (later fully performed), effected a surrender of any rights under the first “receipt agreement” of the same date. (Coe v. Hobby, 72 N. Y. 141, 146-147.) The taking of the new lease and the execution of an agreement covering the same property on new terms effected a merger and made inoperative the terms of the initial lease, rights under which were necessarily surrendered or waived under the documentary proof. (Wilbur v. Collin, 4 App. Div. 417, 419.) The effect of the doctrine of the foregoing cases upon the undisputed facts and documentary proof excludes the existence of a situation that would bring into operation the doctrine of specific restitution. A prerequisite, if there were a field herein for its operation and for the enforcement of that doctrine, is that there be unjust enrichment. Here the defendant enjoyed no unjust enrichment; hence there may be no specific restitution. Moreover, claims based on the element of want of consideration at the time the original receipt agreement was surrendered and when the second informal agreement was made, have no legal significance because the executed superseding Agreement and formal lease were in writing. (Personal Property Law, § 33, subd. 2.) Present — Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ. [f'rv po/>t, p. 1024.]