River Heights Construction Corp. v. General Electric Appliances, Inc.

(dissenting). The making of deliveries by defendant pursuant to the contract between the parties dated July 23, 1947, in compliance with a delivery schedule supplied by plaintiff after February 28, 1948, amounted to a waiver of the time of performance, regardless of whether such time of performance be regarded as having been imposed by said contract of July 23, 1947, or by defendant’s letter dated October 23, 1947 (Schulder v. Ladew Co., 178 App. Div. 458). Judgment should be directed for plaintiff.

Peek, P. J., Glennon and Shientag, JJ., concur in decision; Callahan and Van Voorhis, JJ., dissent in opinion.

Judgment affirmed, with costs. No opinion.

Judgment affirmed, with costs.