(concurring in result). The fact that the plaintiff’s action is on a quantum meruit not prevent establishing a contract between the parties, the terms of which as modified govern the entire transaction. (Taft v. Little, 178 N. Y. 127.) If so established, the plaintiff must prove the terms of the contract and performance thereof. If the plaintiff agreed to have the whole proposition financed, and also agreed that “ it would cost the defendant nothing,” and failed to perform the contract, it would not be entitled to recover.
I concur, therefore, in the affirmance of the order but on the grounds here indicated.
Finch, P. J., concurs.
Order affirmed, with costs and disbursements.