Leibowitz v. Foster & Stewart Co.

Order setting aside the dismissal of the complaint and of the counterclaim, and granting a new trial, affirmed, without costs, The majority of the court is of opinion that as a matter of law the time for the delivery of the merchandise was waived by plaintiffs, the purchasers, and hence they have no cause of action unless they notified defendant requiring delivery within a reasonable time before they commenced their action. (Taylor v. Goelet, 208 N. Y. 253; Schulder v. Ladew Co., Inc., 178 App. Div. 458; Ullman Co. v. Mott Iron Works, 187 id. 699.) Blackmar, P. J., Kelby and Young, JJ., concur; Kelly and Manning, JJ., while concurring to affirm the order, are of opinion that the whole question as to a breach of the contract, waiver of the provisions, and the obligations of both parties in respect thereto, should be determined by a jury in accordance with facts and circumstances as disclosed by the evidence upon the new trial. (See Pers. Prop. Law, §§ 126, 146.)* Footnotes [*] Added by Laws of 1911, chap. 571.— [Rep.