Upon the findings of fact by the referee, there seems to be very little ground for an allegation of error in this ease. It is insisted that the building was accepted, even *238if it were not completed according to the contract. No such fact is found, nor was the referee requested so to find. If necessary to support the judgment, we are probably bound to presume that he found the other way, in accordance with his judgment. (Grant agt. Morse, 22 N. Y. 323.)

If the contractor had neglected and refused to complete his contract in a material point, it does not follow that the owner waives its performance by taking possession of, and occupying the building in its defective condition. An owner is not put to so absurd an alternative, as - either to lose and abandon his building, worth perhaps $10,000, or to occupy it at the peril of paying for work not performed, or of waiving thereby the performance of any substantial covenant of the contractor.

"Upon the case as presented here, there seems no ground for relief, even though the referee erred in his finding of facts. For an error of that character, as a general rule, the appeal is confined to the supreme court.

This includes also the finding in regard to the extra work. If the supreme court committed any error, it was not one within the province of this court to correct.

The judgment must, therefore, be affirmed.

All the judges concurring.

Judgment affirmed.