This action was brought to recover an advance payment for a second year under an' agreement by the terms of which plaintiff contracted to inspect and repair defendants’ elevator. The contract provided that it should be automatically renewed from year to year *128unless the defendants notified the plaintiff thirty days prior to any expiration.
The learned judge below has found that the plaintiff did not perform its agreement for the first year. From this finding it follows that the plaintiff has no further rights under the agreement unless there was an express renewal by the defendants of which there is no evidence at all or a waiver by the defendants of plaintiff’s nonperformance during the first year. The learned judge below was of opinion that the fact that the defendants had notified the plaintiff of their election not to renew (such notice being manifestly belated under the contract) was evidence of a waiver. We are unable to concur in this view.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
Bijur and Mullan, JJ., concur; Cotillo, J., dissents in opinion.