Woollard v. Schaffer Stores Co.

247 A.D. 844

Opinion

The decision handed down January 15, 1936 [246 App. Div. 157], and the order entered thereon February 10, 1936, are hereby amended to read as follows: “ Judgment reversed, on the law and facts, with costs, and complaint dismissed, with costs. Opinion by Crapser, J. Rhodes, McNamee and Bliss, JJ., concur; Hill, P. J., dissents. The following findings of fact, contained in the referee’s report, are reversed: Nos. 5, 6, 25 and 30; and all findings of fact contained in the portion of the decision captioned ‘ Conclusions of Law ’ are reversed. The following findings of fact, contained in plaintiff’s proposed findings, are reversed: Nos. 5, 6, 25 and 31, and all findings of fact captioned ‘ Conclusions of Law ’ are reversed. The court makes the following new finding of fact: That plaintiff’s receipt and acceptance of the payment of rent accruing subsequent to the notice of election to declare a forfeiture was a waiver of the forfeiture.” Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.