I agree with the majority in affirming the award of partial summary judgment but disagree to the extent of allowing the action to continue for further relief. Plaintiff, an attorney, was retained to negotiate a contract with a third party. For this he was to receive $2,000 in addition to his disbursements and 20% of the stock of the defendant corporation. He was paid $1,000. His disbursements were $389.29. Summary judgment for the balance of the fee and the disbursements has been awarded and paid. While the complaint alleges that the value of the stock has been diluted, no recovery predicated on such claim was sought in the complaint nor made on the motion, and it is not disputed that defendants have offered delivery of the stock.
Plaintiff is not suing, as he states, on his agreement. His claim is that the agreement was repudiated and he is therefore entitled to the reasonable value of the services he performed. Assuming the validity of plaintiff’s contention as to his rights, he has made out no case. The contract was never repudiated. The record is barren of any expression by the defendants that they denied the existence of the agreement or asserted any defect in it. Nor is there any proof that they disputed plaintiff’s performance. All that is shown is that in a letter dated January 28, 1964, defendants expressed reluctance to make payment and sought to have plaintiff, in view of the fact that the venture turned out disastrously, cede a portion of his claim. The statement in the majority memorandum that plaintiff performed further services after this letter has no application. No proof of repudiation other than this letter was offered to show repudiation and, as it fails completely to do so, it is immaterial whether it preceded or succeeded the rendition of services. The failure *500to pay was, of course, a breach by the defendants. But breach of a contract and repudiation are not synonymous, nor do they have exactly similar legal consequences (La Rose v. Backer, 11 A D 2d 314, 319, affd. 11 N Y 2d 760). A breach without repudiation does not entitle the other party to any relief other than recovery on the contract (Larme Estates v. Omnichrome Corp., 250 App. Div. 538, affd. 275 N. Y. 426). Undoubtedly, as a matter of form, the unpaid party may sue in quantum meruit, if he so elects. But his recovery will not be affected thereby. “It is likewise the settled rule that where an express contract has been fully performed, the contractor may elect to sue either on the express contract or on quantum meruit on the contract implied by law and that in such case the provisions of the contract govern with respect to the amount of the' recovery.” (Raile v. Peerless Amer. Prods. Co., 192 App. Div. 506, 508.) Plaintiff having received the full amount of what was stipulated in the contract is entitled to no further recovery.
The order and judgment should be modified on the law to strike out the provisions for severing and continuing the action, and, as so modified, affirmed, with costs and disbursements to appellant.
Botein, P. J., Breitel and Stevens, JJ., concur in Per Curiam opinion; Steuer, J., dissents in opinion in which Rabin, J., concurs.
Order and judgment affirmed, without costs or disbursements to either party.