I do..not see that the appellants could on this motion take, advantage of the objection that all of the parties to the special proceeding were not before the court. In the affidavit upon which, the motion was made, Sherer swears that he did not know until a motion was made on behalf of Yoorhees to vacate the order of reference that Yoorhees had not been properly made a party to this proceeding. A copy of the order of May 24, 1906, had been served upon him, and he knew of thé method for the service of the order directed, and if he had wished to take the objection that all parties were not before the court, he should, have taken it on the return of that order, and not having done so, it is waived. So far as appears, the only objection that was taken before the referee was that the order was'unconstitutional and 'void. The specific objection that there was a defect of parties to the special proceeding was not taken either before the court at Special Term on. the return of the order to show cause or before the referee. It also appears that the order of May 24, 1906, ivas affirmed by. this court. (114 App. Div. 912.)
The question as to what, if any, final order should be entered in this proceeding can be raised upon the motion to confirm the referee’s report.
The order should be affirmed, with ten dollars costs and disbursements.
Patterson, P. J., Laughlin, Clarke and Houghton, JJ., concurred. ■
Order affirmed, with ten dollars costs and disbursements.