Cook v. Wardens & Vestry of St. Paul’s Church 67 N.Y. 594

Elbert W. Cook, et al., Appellants, v. The Wardens and Vestry of St. Paul’s Church, Havana, Respondent.

(Argued October 4, 1876;

decided November 14, 1876.)

This was an action of ejectment to recover certain premises conveyed by plaintiffs and others, heirs at law of Charles Cook to the defendant. (Reported below, 5 Hun, 293.)

The deeds contained certain conditions subsequent, and plaintiffs sought to recover because of breach of said conditions. The referee found that after the breach plaintiffs, without objection, permitted defendant to expend $901 in repairs upon the premises. They also joined with defendant in. effecting a sale of part of the premises, receiving to their own use the purchase-money therefor, and have joined the defendant, or one of them has, in the use of the premises for religious worship. Held, that plaintiffs had waived the forfeiture, if any occurred (Hooper v. Cummings, 49 Me., 389; Andrews v. Senter, 35 id., 394); also, that the evidence of waiver having been received without objection, it could not be objected on appeal that no issue of waiver was made in the pleadings. (McKeehnie v. Wa/rd, 58 1-T, Y., 541.)

J. McGuwe for the appellants.

M. M. Mead for the respondent.