By the Court,
Bronson, J.We think the referee might in his discretion have postponed the hearing and received further evidence at another time, and as he has certified that he declined doing so upon the sole ground of want of authority, and as the affidavits make a strong case in favor of the motion, we are of opinion that the hearing should be opened, and the parties be allowed to produce further testimony. If the referee had put his refusal on any other ground than the want of power, we should not have interfered. The defendants will very likely think it prudent, if ■ not necessary, to have all their witnesses,- as well as their counsel, in attendance on the further hearing. The plaintiffs must therefore pay the costs of the hearing thus far, as well as the costs of opposing this motion, as the condition on which relief is granted.
Ordered accordingly.