Mobil Oil Corp. v. Shaheen Natural Resources Co.

Order entered on September 5, 1967, to the extent appealed from, unanimously modified, on the law, to dismiss the first and second defenses in defendants’ answer and to grant summary judgment in favor of plaintiff, and otherwise affirmed, with $50 costs and disbursements to plaintiff-appellant-respondent. The essential facts on which plaintiff relies as constituting waiver are undisputed, and in our opinion they bring the case within the compass of such decisions as Gleet v. Pennsylvania Exch. Bank (285 App. Div. 411) and Lumber Ind. v. Woodlawn Furniture Corp. (26 A D 2d 924). The order of this court entered on December 14, 1967 [29 A D 2d 523] is vacated. Concur — Botein, P. J., Stevens, McGivern and Witmer, JJ.