Section 178. Application for appointment of referee

If such referee or
  referees be not selected by agreement, then the trustees  or  the  other
  party  to  the controversy, provided no action at law is pending arising
  out of any such debts or demands, may serve a notice of their  intention
  to  apply  to  a judge of the court which appointed said trustees, or to
  any justice of the supreme court  at  chambers,  residing  in  the  same
  district  with  said  trustees,  for  the  appointment  of  one  or more
  referees, specifying the time and place when such  application  will  be
  made,  which notice shall be served at least ten days before the time so
  therein specified.