Opinion
April, 1929.
Order, as resettled, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Whatever rights defendant possessed under the original agreement of July 31, 1928, to have the order in question vacated have been waived by the subsequent transactions between the parties. By his stipulation, agreeing to vacate the property on December 31, 1928, the last agreement of October 3, 1928, was, by consent, rescinded and defendant then occupied his original position of a mortgagor retaining possession of the mortgaged property after sale and a referee's deed to the purchaser. Young, Hagarty, Seeger and Carswell, JJ., concur; Lazansky, P.J., concurs in result.