Opinion
April, 1930.
Present — Lazansky, P.J., Rich, Kapper, Hagarty and Scudder, JJ.
Judgment unanimously affirmed, with costs. The time fixed by the contract for completion of deliveries was March 31, 1927. The letter of September 7, 1927, did not revive the contract even if we ignore its self-serving character. But if we assume that it did, the next elapsing period of over nineteen months down to and including April 24, 1929, when, contemporaneously with the service of the summons and complaint, the plaintiff's assignor gave the defendant notice that it held the undelivered goods under the contract for the defendant, shows the plaintiff not entitled to prevail under the authority of Timme v. Steinfeld ( 214 App. Div. 611). We point out that nothing was proved by plaintiff, except the two letters referred to, both of them after the time limit fixed by the contract, indicating the slightest understanding or belief upon the part of the plaintiff's assignor that the incomplete portion of the contract was regarded in any other light than as an abandoned contract. The admission in the answer relied on by plaintiff went no further than plaintiff's proofs, which established only that any offer of the merchandise was that which might be inferred from the two letters mentioned. We are of opinion that the judgment dismissing the complaint was correct.