It is plain that the contract price of the books to be written by the plaintiff was six dollars per page, two dollars to be paid on delivery, and the balance after publication by applying one-sixth of the net receipts of sales until the whole sum of six dollars should be paid, when all right, title and interest of the plaintiff in said books were to cease. The additional four dollars per page was to be paid for the book, not for total abstinence; the latter was a condition precedent to payment, not the consideration. The defendant has received precisely what he contracted for, i. e., a book, unaffected by the breach of the plaintiff’s covenant to totally abstain from the use of intoxicating liquors. Had the payment of. the entire contract price been made dependent on the performance of that covenant, the defendant after a knowledge of the breach could not have accepted continued performance on the plaintiff’s part without waiving the right to insist upon a forfeiture (CrookerWheeler Co. v. Varick Realty Co., 104 App. Div. 568, and cases cited), but because two dollars per page was to be paid during per*664formance (evidently to enable the plaintiff to subsist) and the payment of the balance only was dependent upon the performance of that particular covenant, it is insisted that an express waiver does not avoid a forfeiture. It may be admitted that a waiver would not be implied from a mere acquiescence in continued performance, and the acceptance of the benefits thereof after knowledge of the breach, because by reason of the peculiar provisions of the contract the defendant had the right to accept complete performance and to pay therefor at the rate of only two dollars per page in case of the breach of the particular covenant under consideration, hence an intention to waive could not be inferred from that circumstance alone. The plaintiff covenanted to totally abstain from the use of intoxicating liquor, and performance of that covenant was expressly made a condition precedent to the payment of four dollars per page, but we should not confuse that covenant and condition with the thing contracted for; the covenant related solely to the manner of performance; nor should we confuse waiver with estoppel, -release or modification. The plaintiff’s position is that he has pleaded a waiver; he frankly concedes that he has not alleged any new consideration or any fact upon which to base a claim of estoppel. We must determine then what is necessary to constitute a waiver. A waiver is defined to be “the intentional relinquishment of a known right” (2 Bon vier’s Law Diet. [Rawle’s Rev.] 1207 ; 29 Am. & Eng. Ency. of Law [2d ed.], 1091, and cases cited); “ a voluntary relinquishment of some right” (Cowenhoven v. Ball, 118 N. Y. 234); “ the voluntary abandonment or relinquishment by a party of some right or advantage ” (Draper v. Oswego County Fire Belief Assn., 190 N. Y. 16); “ the doctrine of waiver is to relieve against forfeiture; it requires no consideration for a waiver, nor any prejudice or injury to the other party.” (Draper v. Oswego County Fire Belief Assn., supra.) I think the facts alleged in the 12th paragraph of the complaint are sufficient.to constitute an express waiver. The effect of this was not to release any damages that may have been suffered by the breach, nor to modify the contract in any way as the learned counsel for the plaintiff clearly points out. The defendant, with knowledge of the breach, assured the plaintiff that notwithstanding it he should receive the royalty payments; an intention to waive is the essential element of a waiver; [iere was an *665express declaration of such intention; as the result of that the defendant waived the right to insist upon the breach of the condition precedent as a defense, and was remitted to damages for the breach of the covenant. The learned counsel for the appellant argues that if the facts constituting the waiver are proved as alleged, they will show a complete discharge of the plaintiff of all damage, as it is alleged that the defendant promised to pay the plaintiff six dollars per page notwithstanding the breach; it may be granted that such an agreement was not good either as a release or a new contract because without consideration, but that does not prevent its operation as the waiver of a forfeiture, and surely there could be no clearer expression of an intention to waive than a promise to pay the full amount. The cases relied upon by the respondent are not in point. Gibson El. Co. v. Liverpool & L. & G. Ins. Co. (159 N. Y. 418) did not deal with the question of express waiver; Pope Mfg. Co. v. Rubber Goods Mfg. Co. No. 1 (110 App. Div. 341) only held that a waiver did not amount to a release; and Ripley v. JEtna Ins. Co. (30 1ST. T. 136) so far as it held that a waiver was not operative unless it involved some element of estoppel or was supported by an agreement founded on a consideration, has been overruled by many subsequent cases, which it is unnecessary to cite in view of the language of Chief Judge Cullen, in Draper v. Oswego County Fire Relief Assn, (quoted supra), which had the concurrence of the entire bench. The learned counsel for the appellant urges that the rule as laid down in the so-called insurance cases does not apply for the reason that such cases are sui generis, but we are not aware that insurance contracts are governed by any different rules of law from other contracts.
The thing contracted for was the book; the agreement for total abstinence related to the manner of performance; the defendant got what he contracted for; he could waive a forfeiture for the breach of the condition precedent, and as an express waiver was alleged the demurrer was properly overruled.
Jenks, J., concurred.
Interlocutory judgment reversed and demurrer sustained, with costs, with leave to respondent to answer upon payment of sugh costs within twenty days,