| N.Y. App. Div. | Dec 14, 1967
Order entered on September 5, 1967, to the extent appealed from, unanimously modified, on the law, to dismiss the first and second defenses in defendants’ answer and to grant summary judgment in favor of plaintiff, and otherwise affirmed, with $50 costs and disbursements to plaintiff-appellant-respondent. The essential facts on which plaintiff relies as constituting waiver are undisputed, and in our opinion they bring the case within the compass of such decisions as Oleet v. Pennsylvania Exch. Bank (285 A.D. 411" date_filed="1955-02-15" court="N.Y. App. Div." case_name="Oleet v. Pennsylvania Exchange Bank">285 App. Div. 411) and Lumber Inds. v. Woodlawn Furniture Corp. (26 A D 2d 924). Concur — Botein, P. J., Stevens, McGivern and Witmer, JJ.