Opinion
April 3, 1939.
Present — Lazansky, P.J., Hagarty, Carswell, Johnston and Close, JJ.
Order confirming official referee's report and granting plaintiff leave to enter a deficiency judgment, and judgment entered thereon, unanimously affirmed, with costs. The stipulation whereby the trustee agreed to make no application for a deficiency judgment against appellant, in consideration of the delivery of a deed to property adjoining the mortgaged premises and the transfer of certain personalty, was within the power of the trustee and was, therefore, valid, in the absence of any contrary provision in the declaration of trust. (Restatement of the Law of Trusts, § 192.) But the appellant waived her right to review the determination of the Special Term, holding the stipulation invalid, by acquiescing in such determination and accepting the return of the deed and bill of sale. ( Carll v. Oakley, 97 N.Y. 633.) The findings of the official referee as to the value of the mortgaged premises were not against the weight of the evidence.