Opinion
June 25, 1937.
Order denying plaintiffs' motion to confirm official referee's report and for a deficiency judgment, and granting defendants' cross-motion to deny confirmation, modified by inserting therein a provision fixing the valuation of the property involved as of April 30, 1936, at $16,850, and as thus modified affirmed, without costs. The plaintiffs, having moved to confirm the order as if it were in proper form, may not be heard to complain of an irregularity based on their having procured an order of reference in improper form. Parties may always by consent follow procedure other than that normally prescribed. The order, therefore, must be deemed now to have been one to hear and report with opinion. The justice at Special Term indicated, without expressing any figures, the amount of valuation at which he arrived. This court may do that which the Special Term could have and should have done — that is, fix the figure. The conclusion of the Special Term was the only one justified by the credible evidence and it is the one we adopt. Hagarty, Carswell, Davis, Adel and Taylor, JJ., concur.