Garlock v. Garlock 103 N.Y.S. 1126

DEVENDORF, J.

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 $10 costs, generally, to abiae the event, without prejudice to a renewal thereof if the plaintiff fails to notice the case for trial before the referee within 10 days after notice of the entry of order hereon. Motion denied, with $10 costs generally, to abide event, without prejudice to a renewal thereof if plaintiff fails to notice case for trial before the referee within 10 days after notice of entry, of order herein.