George Silverstein et al., Respondents, v. Empire State Shoe Co., Inc., et al., Appellants, 20 A.D.2d 735

Appeal from a judgment in favor of plaintiffs, entered upon a decision, for rent under a lease providing, among other things, that “before this lease commences”, and as “a condition precedent to duties under said lease”, the landlords would make certain installations. None of them were made and this failure is alleged by defendants to be a breach of a condition precedent and to constitute a complete defense to the action.

Nevertheless, defendants occupied the premises and paid rent for 26 months before vacating them, at no time objecting to plaintiffs’ failure to make the installations or requesting that they be made. The result was a waiver of the condition or of the landlords’ obligation, however denominated. (Campbell v. Poland Spring Co., 196 App. Div. 331, affd. 233 N. Y. 506; Clements v. Steinhauer, 15 A D 2d 72, 77; Electronic Corp. of America v. Famous Realty, 87 N. Y. S. 2d 169, 172, affd. 275 App.

Div. 859.) The conversation between the parties preceding the execution of the contract did not concern a condition as to the delivery or effectiveness of the lease, as in Hubbard v. Tobin (15 Misc 2d 65), relied upon by respondents; but the supposed error in its admission was harmless inasmuch as there was, as we have found, waiver of the landlords’ obligation as a matter of law. Judgment affirmed, with costs to respondents. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.