It is conceded that the contract under which plaintiff worked in defendant’s quarry was void by the statute of frauds. So far, however, as such contract had been executed by and between the parties, the terms of the contract would determine their respective rights, and the court will not disturb them in relation thereto. The defendant having taken advantage of the invalidity of the contract to discharge the plaintiff, and forbid his performance of further labor under it, becomes liable to plaintiff on a quantum meruit for services rendered and not paid for. To the extent that the contract was performed and plaintiff’s services paid for, he may retain such pay or profits. (Harris v. Frink, 49 N. Y., 24.) But services rendered and not paid for constitute a basis for damages. One who renders services under a contract void by the statute of frauds may recover the value of such services, if he has been ready to perform the contract, and the other party has refused. (King v. Brown, 2 Hill, 485; Galvin v. Prentice, 45 N. Y., 162; Day v. N. Y. C. R. R. Co., 51 id. 583.) In this case the plaintiff cannot recover damages so far as his services were compensated by the stone taken out under the contract. But for-services not thus compensated, he is entitled to recover their value. The measure of damages is the value of the services, and not the ' value of the stone in the quarry, or of the void contract. (King v. Brown, ante; Erben v. Lorillard, 19 N. Y., 299, 302, 304; Day v. N. Y. C. R. R. Co., 51 N. Y., 590.)
The action was tried upon the law as here stated, and we think the rule of damages adopted by the court justified the rulings upon the admission of evidence on that subject. The defendant could not deduct the plaintiff’s profits already realized from the the value of services thereafter rendered. In regard to the ditch dug to drain the quarry, it is not clear that the jury allowed plaintiff anything for digging it. ■ But we think he was plainly entitled to make that proof, and to recover some portion of that expense; *64such proportion as the stone to be taken out bore to that already removed. There is no reason why the whole expense of the ditch should be charged to plaintiff, and the defendant have all its benefits for future works. The plaintiff was allowed to recover for so much of the top removed as was over the stone, which he was not allowed to get out, and which the defendant can now get out without the expense of uncovering. It is evident, therefore, that, upon any just rule of damages, the plaintiff recovered no more than a fair compensation for the services rendered and benefits bestowed upon defendant.
It is not seen upon what principle the plaintiff is or should be restrained from recovering Simmons’ damages. If Simmons had a cause of action, either jointly with plaintiff or severally, he could transfer it to plaintiff, who could then maintain an action thereon in his own name. In the case of Eddy v. Cole, wherein the judgment-roll was handed up to us, it appears that Clark, the assignor of Eddy, had failed and neglected to pay his rent, and therefore he was ejected from the quarry. That being true, it was a sufficient reason why he had no cause of action, and Eddy acquired none by his assignment. But that case does not show the grounds upon which the decision was made upon appeal, and is of little value as authority.
We think the assignment transferred a cause of action, upon which plaintiff could recover, if Simmons had one. The defendant insists this action should have been brought in equity. But assuming that an action in equity, to enforce a specific performance, could have been maintained, we are yet clear that plaintiff had an election of actions, either for such specific performance or for the damages caused by defendant’s repudiation of his contract. (2 Story’s Eq. Jur., §§ 716, 717.) We think the result in this case is just, and that no errors have been committed which should avoid the recovery.
• The judgment and order are therefore affirmed, with costs.
LeakNed, P. J., and Bockes, J., concurred.Judgment affirmed, with costs.