¶1I am of the opinion that I should grant the motion and order judgment for the defendant, dismissing the plaintiff’s complaint, with costs. In so doing I follow Quackenbush agt. Johnson (55 IIow. Pr., 94); Cornelius agt. Barton (12 W. Dig., 216); Geib agt. Topping (83 N. Y., 46). I am aware that Phipps agt. Carman (23 IIun, 150) is in conflict with the cases relied upon, and that this case has been affirmed in 84 27. Y. I am, however, unable to concur in the opinion written in the general term, and, inasmuch as the general term of another department has since held the other way, I do not feel bound by it. The court of appeals, it is true, affirmed the decision) but did not state the grounds upon which its decision was based. In that case there was a delay of about two years in filing the referee’s report, and the case is easily distinguishable from the one under consideration.
¶2Motion granted.