The action is brought by a purchaser against the seller to recover damages for the breach of a contract- to sell some cotton grey cloth. The contract provided for the sale of 3,000 pieces, of which 1,000 pieces were delivered. Thereafter the defendant refused to make further deliveries and the plaintiff sues to recover his damages as the difference between the contract price of the goods in question and the market price which the plaintiff was required to pay in order to procure the same. The defendant justifies its refusal to deliver the balance of the goods contracted for on the ground that prompt payment was not made for the installments which were in fact delivered. The facts of the case show that upon the first installment delivered the payment was due upon May twelfth and was made upon May fourteenth. Upon the second installment delivered the payment was due upon May nineteenth and was made upon June thirteenth. Upon the third installment delivered payment was due upon May twenty-sixth and was paid upon June twenty-sixth and upon the fourth installment payment was due upon June second and was made upon June twenty-sixth. The fourth installment was delivered upon May 22, 1919. At that time the amount of the second installment was three days overdue. The fifth installment was deliverable under the contract upon May twenty-ninth. At that time the plaintiff had not paid the bill for the second installment which was ten days overdue, nor for the third installment which was three days overdue. Although upon June twenty-sixth payments had been made in full for all the installments delivered and a demand was made for further deliveries, the defendant refused to make further deliveries and for damages caused by this refusal this action is brought.
At no time did the defendant give any notice to the plaintiff that the contract was abandoned or rescinded and its *15only communication to the plaintiff was a letter written upon June 15, 1919, which contained the statement of the account and stated: “ Kindly favor us with your check by return mail, and oblige.” The statement accompanying the letter was a statement of payments due for the third and fourth installments which were overdue respectively sixteen and nine days.
At the close of the evidence the trial judge submitted to the jury two specific questions which they were directed to answer: First, “ Was the breach of contract on the part of the plaintiff so material as to justify the defendant in refusing to proceed further in delivering goods under the contract on and after May 29, 1919? ” Second. “ Irrespective of your answer to the former question, and assuming that the plaintiff is entitled to recover, what is the amount of the damages which the plaintiff is entitled to recover? ” The jury answered the first question in the affirmative and as to the second question assessed the damages at $8,737. It was stipulated that after the answer to those specific questions the court might direct a general verdict as upon a reserved motion made by both parties for a directed verdict. The court thereupon directed a general verdict in behalf of the plaintiff for the amount specified in the answer to the second question submitted to the jury.
Whatever may have been the rule under former decisions of the courts of the State, section 126 of the Personal Property Law (as added by Laws of 1911, chap. 571) now states the conditions upon which a party has the right to refuse further to perform a contract. Under subdivision 2 the rule is stated: “ Where there is a contract to sell goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right *16to treat the whole contract as'broken.” This subdivision was interpreted by the Court of Appeals in the case of Helgar Corporation v. Warner’s Features (222 N. Y. 449). Judge Cardozo in writing the opinion states: “ The statute thus establishes a like test for vendor and for vendee. The earlier cases may not be wholly uniform [Citing cases]. We do not need to reconcile them. * * * We have established a new test, which weighs the effect of the default, and adjusts ' the rigor of the remedy to the gravity of the wrong. ‘ It depends in each case on the terms of the contract and the circumstances of the case ’ whether the breach is ‘ so material ’ as to affect the contract as a whole.” The opinion further reads: “ The answer to that question must vary with the facts (Williston on Sales, p. 810). Default in respect of one installment, though falling short of repudiation, may under some conditions be so material that there should be an end to the obligation to keep the contract alive. Under other conditions, the default may be nothing but a technical omission to observe the letter of a promise [Citing cases]. General statements abound that, at law, time is always of the essence [Citing -cases]. For some purposes this is still true. The vendor who fails to receive payment of an installment the very day that it is due, may sue at once for the price. But it does not follow that he may be equally precipitate in his election to declare the contract at an. end [Citing cases]. That depends upon the question whether the default is so substantial and important as in truth and in fairness to defeat the essential purpose of the parties. Whatever the rule may once have been, this is the test that is now prescribed by statute. The failure to make punctual" payment may be material or trivial according to the circumstanecs. We must know the cause of the default, the length of the delay, the needs of the vendor, and the expectations of the vendee. If the default is the result of accident or misfortune, if there is a reasonable assurance that it will be promptly repaired, and if immediate payment is not necessary to enable the vendor to proceed with performance, there may be one conclusion. If the breach is willful, if there is no just ground to look for prompt reparation, if the delay has been substantial, or if the needs of the vendor are urgent so that continued per*17formance is imperilled, in these and in other circumstances, there may be another conclusion. Sometimes the conclusion will follow from all the circumstances as an inference of law to be drawn by the judge; sometimes, as an inference of fact to be drawn by the jury.”
There is not the slightest evidence in this case which would justify finding that the delay in punctual payment was material. There is no need of the vendor shown, by reason of which the few days’ delay in payment will cause embarrassment. There is not the slightest pretext of any fact justifying a finding of willful neglect on the part of the vendee. Moreover, the fourth installment was delivered while the bill for the second installment was three days over due. This was clearly a waiver of strict performance on the part of the plaintiff, and while a waiver acts in presentí, only, the court will not thereafter enforce a forfeiture without some notice of intention on the part of the vendor thereafter to require strict performance. This rule is forcibly stated in the case of Rathbone v. Forsyth (171 App. Div. 26). That case arose upon the right to declare the principal amount due upon a mortgage for failure to pay an installment, and the rule of law held was that “ Acceptance of a payment by a mortgagor, after the right to a forfeiture exists, prevents an election to take advantage of the default, unless timely notice is subsequently given that strict performance of the terms of the contract will be required.” Authorities were therein cited to show “ That where a party intends to insist upon a forfeiture he must do no act inconsistent with that right, and that if the forfeiture is to be enforced on account of a nonpayment of money, an acceptance of money after a right to the forfeiture exists prevents the election to take advantage of the default until timely notice is given that strict performance is required.” (See, also, Pipe & Contractors Supply Co. v. Mason & Hanger Co., 181 App. Div. 317.)
Without any evidence of the materiality of the plaintiff’s breach of the contract other than the few days’ delay in the making of the first four payments, and without any notice of an intention to require strict performance of the contract, after strict performance had been once waived by delivery of *18the fourth installment while the payment of the second installment was three days over due, in my judgment the question of the materiality of the plaintiff’s bréach became a question of law and was properly ruled by the trial judge and the judgment should be affirmed, with costs.
Clarke, P. J., concurs.
Judgment and order reversed, with costs, special and general verdicts reinstated and judgment directed thereon in favor of defendant, with costs.