I think this motion is properly addressed to the Special Term and that it would not be within the power of the referee to hear and determine a motion to dismiss pursuant to section 822 of the Code.
In view of the equities in this action and the facts shown on this motion, I have concluded that the parties should have a day in court herein if the case proceeds henceforth with diligence. This motion is, therefore, denied, with ten dollars costs, generally, to abide the event, without prejudice to a renewal thereof if the plaintiff fails to notice the case for trial before the referee within ten days after notice of the entry of order hereon.
Motion denied, with ten dollars costs, generally, to abide event, without prejudice to a renewal thereof if plaintiff fails to notice case for trial before the referee within ten days after notice of entry of order herein.