George Silverstein Et Al. v. Empire State Shoe Co‪.‬

Appeal from a judgment in favor of plaintiffs, entered upon a decision, for rent under a lease providing, among other things, that ""before this lease commences"", and as ""a condition precedent to duties under said lease"", the landlords would make certain installations. None of them were made and this failure is alleged by defendants to be a breach of a condition precedent and to constitute a complete defense to the action. Nevertheless, defendants occupied the premises and paid rent for 26 months before vacating them, at no time objecting to plaintiff's failure to make the installations or requesting that they be made. The result was a wavier of the condition or of the landlords' obligation, however denominated. (Campbell v. Poland Spring Co., 196 App. Div. 331, affd. 233 N. Y. 506; Clements v. Steinhauer, 15 A.D.2d 72, 77; Electronic Corp. of America v. Famous Realty, 87 N. Y. S. 2d 169, 172, affd. 275 App. Div. 859.) The conversation between the parties preceding the execution of the contract did not concern a condition as to the delivery or effectiveness of the lease, as in Hubbard v. Tobin (15 Misc. 2d 65), relied upon by respondents; but the supposed error in its admission was harmless inasmuch as there was, as we have found, waiver of the landlord's obligation as a matter of law. Disposition Judgment affirmed, with costs to respondents.