Special Term found as a fact that there was no delivery whatever of either of the instruments in question by the plaintiff to the defendant Rogers. These findings were affirmed by the Appellate Division. Hence there is no support for that court’s conclusion, “ That in so far as the twenty acre parcel is concerned plaintiff waived any condition imposed upon delivery of the contract by accepting the proceeds of the check of $324.00 as part of the purchase price after the time for performance of the condition had expired.”

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to plaintiff-appellant in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.