
    GARLOCK v. GARLOCK et al.
    (Supreme Court, Special Term, Jefferson County.
    December, 1906.)
    Action by Jason Garloek against Orilla C. Garloek and others. On motion to dismiss for want of prosecution. Denied. G. S. & H. L. Hooker, for the motion. Lansing & Lansing opposed.
   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.  