
    DEGENER v. UNDERWOOD et al.
    (Superior Court of New York City, General Term.
    December 5, 1892.)
    Appeal—Review—Waiver of Objection. Defendants cannot ask a reversal on the ground that they were not served with notice of trial, if they failed to move to vacate proceedings had before the referee prior to the presentation of their defense.
    Appeal from judgment on report of referee.
    Action by Frederick L. Degener against John T. Underwood and Frederick W. Underwood. From a judgment for plaintiff, defendants appeal. Affirmed.
    For former report, see 7 N. Y. Supp. 681. • -
    Argued before FREEDMAN, DUGRO, and GILDERSLEEVE, ¿J.
    James A. Hudson, for appellants.
    J. E. Ludden, for respondent.
   DUGRO, J.

There is authority for the proposition that where a defendant appears and makes defense a new trial will not be granted because of a failure to give notice of trial. Younge v. Fisher, 2 Dowl. (N. S.) 637; Doe d. Antrobus v. Jepson, 3 Barn. & Adol. 402; Thermolin v. Cole, 2 Salk. 646; see 3 Wait, Pr. 31, 397; 2 Rum. Pr. p. 405. But, regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of their loches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defense. By the order of July 9th the .'clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2d to April 9th, and the costs and disbursements, in all $40.53 less than the amount of the judgment entered by the clerk. . The entry of the judgment should be corrected accordingly. A careful examination of the case discloses no error requiring reversal. The judgment entered, as ordered to be corrected, is affirmed, with costs. All concur.  