A party may waive his or its legal rights; it may waive constitutional rights. ( Wall v. Beach, 20 App. Div. 480.) I conclude that the defendants could waive their right to have the questions, so far as they may be reviewed, reviewed by certiorari and proceed by submission under section 1279 as aforesaid. We can pass upon questions of law only. ( Marx v. Brogan, 188 N.Y. 431. ) The record does not contain the evidence taken upon the hearing before the Public Service Commission. Commissioner Irvine's opinion [See Matter of Rochester Gas Electric Corp., 24 State Dept. Rep. 175] is incorporated in the record; it is stipulated by the parties that it correctly states the facts; by it we are advised that the returns to the defendant gas company are just, reasonable and not discriminatory, viz., that the rates charged against the consumers for service and gas were reasonable and not discriminatory as between the consumers.

A party can waive his constitutional rights. ( Wall v. Beach, 20 App. Div. 480.) The consent to try the case and the trial without objection, and with the objection waived, gave the court jurisdiction.

I think that the learned Special Term could have limited the rights of Northridge, even though it had in terms made him a party. It has even been held that in proceedings based upon section 452 of the Code of Civil Procedure this may be done. ( Wall v. Beach, 20 App. Div. 480.) Not only should the order be thus modified, but it should limit the hearing lest it afford to Northridge a second day in court as to matters which were or could have been determined on the hearing before the referee, or the subsequent proceedings thereupon. I think that this court should not undertake to dispose of the merits upon this appeal, but should limit its decision to affirmance of the order that affords a rehearing. If the decree were improper or erroneous, it were better that the court which made it should pass upon it in the first instance. ( Wilson v. Barney, 5 Hun, 257, 260.)

The decisions are not in harmony upon this subject; but I think from what has been said in the decisions, that a rule is fairly deducible therefrom to the effect that where the applicant presents satisfactory proof to the court that the action involves the title to real or personal property, or is to recover a claim for injuries to real property, and that the applicant has an interest in such property which is likely to be affected by the judgment, the court has no power to deny his application (Uhlfelder v. Tamsen, 15 A.D. 436; 44 N.Y.S. 484; Johnston v. Donvan, 106 N.Y. 269; Van Loan v. Squires, 51 Hun, 360; 4 N.Y.S. 371; Lawton v. Lawton, 54 Hun, 415; 27 N.Y. St. Repr. 302; Winfield v. Stacom, 40 A.D. 95); but that where it appears that he has been guilty of laches, the right may be denied, or granted upon terms. Koehler Co. v. Brady, 82 A.D. 279; MacArdell v. Olcott, 62 id. 127; Wall v. Beach, 20 id. 480; 47 N.Y.S. 33; Earle v. Hart, 20 Hun, 75. It seems that each case should be determined by an examination of the pleadings, and the particular facts established by the proofs, and that the decision of the question whether they sustain the application rests largely in the discretion of the court.