(dissenting):
I dissent. Conceding that the fair construction of the contract was that the vendee named therein (the plaintiff here) should pay the sum of twenty dollars on the first day of each and every month in advance, it appears that almost from the beginning payments have not-been made on the very first day of the month, but have been made on subsequent dates, and have been accepted by the vendor. Two payments were made in January, 1908, the last one being for the month of December, 1907, so that on the 5th of February, 1908, when the foreclosure action was commenced,-but two payments at the most were in arrears. This court is committed to the doctrine that under similar contracts of sale, where the payments were not according to contract, but irregular as to time and amounts, where the vendor accepted the payments,.he thereby so far waived the forfeiture clause that he-could not revive it except by notice to the vendee that if he did not pay the balance due within a reasonable time specified such forfeiture would then be exercised. (Barnett v. Sussman, 116 App. Div. 859.) There is no pretense that any notice was given. Moreover, the contract provides that default must be made in payment of the installments for two months to forfeit the contract, and then the remedy given to the vendee is to change the relation from that of vendor and vendee to that of a monthly tenancy, giving the party the right to proceed by summary proceedings. Mo such proceedings were instituted, which would be affirmative evidence that the vendor did not intend to terminate the contract. I think that- the commencement of an action in foreclosure,- unexplained by the vendor, was sufficient notice to the vendee that he was unable to perform his contract of sale to her. When, that action terminated in a judgment under *61which the vendee lost possession of the property, that judgment would relate back to the time of the commencement of the action, and the court should have held that the contract was broken by the vendor at that time. If strict performance of the contract by the vendee was waived, as the case above cited would seem to hold, and the contract was broken by the vendor on the 5th of February, 1908, plaintiff was entitled to maintain this action and recover back the money that she paid.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.