The facts established on the motion warranted the Special Term in holding that the goods contracted to be sold, although not delivered at the specified time, were delivered and accepted at a subsequent date, without protest or reservation of any rights on the part of the vendee. This state of facts constituted a waiver by the vendee of any claim for delay in delivery which bars any recovery upon a counterclaim.
I dissent from a reversal of the order, because I think the proper rule of law applicable to the facts is not stated in the prevailing opinion.
The rule with respect to the completion of a building contract within a specified time does not apply to a contract for the sale and delivery of goods, where the goods are accepted after the stipulated time, without protest and without any reservation of damages for failure to deliver. Such acceptance of delivery by the vendee constitutes a waiver of any claim for delay because of failure to deliver at the stipulated time. (Roby v. Reynolds, 65 Hun, 486 ; Burrowes Co. v. Rapid Safety Filter Co., 49 Misc. Rep. 539; 97 N. Y. Supp. 1048.)
It appearing that the defendant had" waived any claim for damages, the court was justified in holding that the answer- was interposed for delay, and the order made was right and should be affirmed".
Order reversed, with- ten dollars costs and disbursements, and motion denied, with ten dollars-costs.’