I dissent and vote for reversal and a new trial upon both causes of action set forth in the complaint.
The time limit provided in the contract was waived by the acts of the parties. I do not think that there is anything inconsistent between the two causes of action contained in the complaint. In my opinion section 146 of the Personal Property Law (as added by Laws of 1911, chap. 571) has no application to the facts in this case. Under the plain reading of that section it applies only where the seller may “ totally rescind ” the contract. I do not believe that there is any controlling decision in the courts to the contrary. The clear wording of the section, the construction placed upon it by its drafters, the prior decisions in this State and the decisions of the courts of other States without exception, should not be disregarded.