SUPREME COURT.

#### Ellsworth agt. Smith *&*Brown.

*Complaint—dismissal of, for neglect to*proceed— *Code of Civil Procedure, section 822—Referee’s refusal to proceed, without his fees were*paid— , *remedy in such case.*

Where a cause was at issue and had been referred and several hearings had been had before the referee, when the latter declined to appoint another hearing until his fees were paid, the case remaining in this condition for over two years:

*Reid.,*that the plaintiff had unreasonably neglected to proceed in the action, and the motion to dismiss the complaint was properly granted.

It is not a good answer to the motion that the defendants themselves might have noticed the case for trial. The plaintiff had the affirmative. He was the actor until his case was presented and closed, and was himself bound to proceed.

If a referee refuse to proceed in the reference he may be removed and another appointed in his place.

*It seems,*that, on sufficient grounds, the court would require the deposit of money to meet the fees of the referee before he would be required to proceed; but such requirement would rest on something unusual and peculiar to the particular case.

*Third Department, General Term,*

*November,*1878.

*Before*Learned, *P. J.,*Boardman *and*Bockes, *JJ.*

Bockes, *J.*

This is an appeal from an order made at special term, pursuant to section 822 of the Code of Procedure, diamiRRing the complaint for want of prosecution. The order was provisional and gave the plaintiff ninety days’ additional time in which to proceed, hence was unusually liberal in its terms.

*238It appears that the case was at issue and had been referred to a referee to hear and determine ; that several hearings had been had before the referee, when the latter declined to appoint another hearing until his fees were paid. The case remained in this condition for over two years, when this motion to dismiss the complaint was made.

W e are of 'the opinion that the motion was properly granted. There had been an inexcusable neglect on the part of the .plaintiff to proceed in the action. ISTor is it a good answer to the motion that the defendants themselves might have noticed the cáse for trial.. The plaintiff had the affirmative. He was the actor until his case was presented and closed, and was himself bound to proceed *(Ray*agt. Thompson, 8 *How.,*253; *Bowles*agt. *Van Horn,*11 *Abbott,*84; *same case,*19 *How.,*346; *see, also, former and present rules of the court).*We do not here intend to hold that a party may be required to pay a referee his fees in advance; or that any payment for fees should be made by a party to a referee until his report or decision is signed and ready for delivery. There may, possibly, be cases where this would be admissible, but they can be of rare occurrence and, as a rule of practice, such a proceeding would be reprehensible in the extreme. It might lead to great abuse, and is suggestive of manifest impropriety. If a referee refuse to proceed in the reference, he may be removed and another appointed in his place. So, too, on sufficient grounds, the court would, perhaps, require the deposit of money to meet the fees of the referee before he would be required to proceed; but such requirement would rest on something unusual and peculiar to the particular case. In the case before us the plaintiff, in so far as is made to appear, omitted all effort to bring the case to a close for a period exceeding two years. He might have moved for the discharge of the referee, on the ground that the latter declined to entertain the reference, when all the fq,cts being made to appear, the court would, by a proper order, put him in a position to proceed, either by superseding the referee, or by *239directing the deposit of his fees, in case that should be deemed right; but the plaintiff took no steps • whatever to bring the case to trial. This he could not omit to do for an unreasonable length of time. He was bound to proceed with diligence. The alleged difficulty in the way of proceeding in this case was not caused by the defendants. Therefore, if any in fact existed, it lay with the plaintiff to remove it. As the case is here presented, action by the plaintiff was open to him, and it was his duty to proceed in the case. This he unreasonably neglected to do.

The order appealed from must be affirmed, with ten dollars costs of appeal and disbursements for printing.

Learned, P. J., and Boardman, J., concur.