
    Barbara C. Fleck, Plaintiff, v. Casper Cohn and Others, Defendants. Millie Cohn, Claimant, Appellant; Casper Cohn and Max Siff, Claimants, Respondents.
    Second Department,
    March 19, 1909.
    Mortgage — surplus proceedings — inchoate dower — trial — failure to call witness—presumption—reference.— waiver of disqualification of referee.
    Surplus proceedings after foreclosure. The claimant asserted that she was entitled to inchoate dower in one-half of the surplus, but it appeared that her husband had only contributed one-sixth of the purchase price of the lands under an agreement with his brother, a cotenant, that he might subsequently repay sufficient money to make him a half owner, his interest otherwise to remain one-sixth. On all the evidence, lield, insufficient to justify the reversal of an order based on a finding that, the claimant’s husband had only contributed one-sixth.
    There is no presumption arising from a failure to call a witness who is present in court, if the opposing party after making a prima facie case calls the witness himself and he is then cross-examined.
    Any claim that a referee was disqualified by reason of the fact that he had formerly been the clerk of one of the attorneys in the case is waived when the ’■ other counsel mentioned the fact to the referee and' disclaimed any intention of questioning his integrity or objecting to his taking the evidence.
    A party may waive a rule of law, or a statute, or even a constitutional provision enacted for his protection where it is exclusively a matter of private right and no considerations of public policy or morals are involved, and having done so, he cannot subsequently invoke its protection.
    Appeal by the claimant, Millie Cohn, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 24th day of February,. 1908, confirming the report of a referee in surplus proceedings.
    
      William, D. Sporborg [Max Winkler and Harold S. Fleischer with him on the brief], for the appellant.
    
      Jacob Brenner, for the respondent Casper Cohn.
   Woodwaed, J.:

The question presented to the referee in this case was what portion of the surplus money should'be set aside for the purpose, of securing the inchoate right of dower of the appellant Millie Cohn. There was evidence which warranted tlie referee in finding, that Casper Cohn and David Cohn entered into a contract for the purchase of the property in question prior to the intermarriage of David Cohn and Millie Freedman Colin, and that the purchase price, aside from the assuming of mortgages and the giving of a purchase-money mortgage, was $3,000, of which Casper Cohn contributed $2,500 and David Cohn $500, with an understanding that if David Cohn repaid to Casper Cohn the sum of $1,000. the former should have a one-half interest in the property, otherwise his interest to be one-sixth, and that David Cohn never contributed anything further toward the purchase of the property. David Cohn and his wife were' living apart' at the time, this controversy arose, and the deeds, mortgages, etc., showing no facts as to the proportionate ownership of the premises, the claimant, Millie Cohn, urges that the presumption prevails of equal ownership, and that the evidence which she produces, in harmony with this presumption, is such as to outweig’h that of the respondents. Aside from the presumption, all of the testimony offered by the appellant was of alleged conversations and admissions of equal ownership at about the time the contract was made, and of facts tending to support an inference that David Cohn actually paid $1,500 of the purchase price. The evidence of Casper and of David Cohn was direct and 'positive ,as to the transaction, while the testimony in opposition, was not of the highest probative character, even assuming the witnesses ,to have been disinterested and honest in their intentions, and we are of the opinion that the weight of evidence is not so preponderating as to justify a reversal of the order.

The suggestion that the'referee erred in not taking judicial notice of the presence of David Cohn in court, and the fact that he was not called by Casper Cohn is of no merit. Casper Colm had himself testified, and as the case stood he was not contradicted; he. was not bound to produce more evidence. But the appellant subsequently called David Cohn, and then the respondent made him his witness, so that there could be no possible presumption arising from an original failure to call him on the part of Casper Colin.

But it is hereUrged that the referee had, at some time prior to the hearing in this proceeding, acted as clerk of the attorney who appeared for Casper Cohn, and that it was improper for him to act as referee because of this fact. It appears, however, that this fact was called to the attention of the appellant’s counsel, and that the latter mentioned it to the referee, at the same time disclaiming any intention of questioning his integrity or of objecting to his hearing the evidence. It is doubtful if the referee was disqualified under any reasonable construction of rule 19 of the General Buies of Practice. But, if he was, the rule is well settled that “a party may waive a rule of law or a statute, or even a constitutional provi§ion enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and having once done so he cannot subsequently invoke its protection.” (Sentenis v. ladew, 140 N. Y. 463, 466.) While it is true, of course, that considerations of public policy forbid the appointment of a “ referee who is the partner or cleric of the attorney, or counsel, of the party in whose behalf such application for such appointment is made, or who is in any way connected in business with such attorney or counsel, or who occupies the same office with such attorney or counsel” (rule 79), where these facts are fully known to the parties or their counsel, and the appointment is made and the trial or hearing proceeds without objection, we see no reason for holding that the determination should be set aside, and Fortunato v. Mayor (31 App. Div. 271, 273) clearly intimates that this would be the rule. But in the present case it does not appear that the referee was a clerk in the office of the respondent’s attorney; he had been such clerk at a time prior to such appointment, but this fact was called to the attention of the appellant’s counsel, and he refused to make any objection, and it is not now suggested that there was any lack of integrity on the part of the referee. We are clearly of the opinion that the rule invoked by the appellant has no bearing here, and that the appeal is not well taken.

The order appealed from should be affirmed.

Jenks, Gaynor, Burr and Rich, JJ., concurred.

Order of the. Oounty Court of Kings county affirmed, with ten' dollars costs and disbursements.  