
    CRANE v. EVANS
    
      N. Y. Supreme Court, First District, Chambers ;
    
      March, 1887.
    1. Deposition of party on special motion.] Upon a reference to ascertain and report the facts material to the determination of a motion by a purchaser at a sale on foreclosure to bo relieved from his purchase, the court has no power, upon the application of the purchaser, under section 887 of the Code of Civil Procedure, to issue a commission to take the testimony of a party to the action without the State, to be used upon the reference.
    2. The same.] A commission cannot be issued to take the testimony of a party to the action who is without the State, to be used upon a special motion made by one who is not a party to the action.
    
    
      Motion on behalf of Kate M. Williams for a commission to take the testimony of the defendant Thomas Evans without the State.
    The action was brought for the foreclosure of a mortgage, made by David W. Evans, now deceased, and upon a sale under the decree, said Williams became the purchaser of the premises. She thereafter refused to take the title, and tiled objections thereto with the referee, claiming among other things, that the title was defective, because the wife of the defendant Evans was not made a party defendant to the action. Thereafter she moved to be relieved from her purchase, and upon the hearing, an order was made referring the questions raised to a referee to take proof and report as to whether or not said Evans had a wife, and was living at the time of the commencement of the action, and at the entry of the judgment, and also as to whether or not John and William Evans, alleged brothers of the deceased mortgagor, are dead, and, if so, who are their heirs.
    Upon this application by the purchaser for a commission to issue to take the testimony of defendant Evans, who resided in Wisconsin, it was alleged that his testimony was material and necessary, and that she could not safely proceed with the trial of the reference on her part without it.
    
      J. F. Malcolm, for the purchaser, and the motion, contended that the provision of Code Gw. Fro. § 887, authorizing the issue of a commission to take the testimony of a witness not within the State, among other cases “ upon a reference or otherwise ” entitled the purchaser to the issue of the commission sought.
    
      Charles W. Dayton, for the plaintiff, opposed.
    
      
       This case turns upon an uncertainty which embarrasses many other actions, viz., whether proceedings after judgment when conducted by motion in the ordinary manner arc proceedings “ in the action ” or not. The question is important in several aspects, not only as affecting the right to take depositions, but as affecting the powers of referees, the proper place for making motions, and some other questions.
      In the present state of the authorities, it is impossible to give the same answer to the question in these various aspects. The general division of remedies into actions and special proceedings contemplates motions not as being in themselves special proceedings, but as applications to the court incidental to either, and a motion is not a special proceeding merely because made after judgment.
      Nor is a motion necessarily a special proceeding because it proceeds against or is made by a person not a party to the action, for motions in an action before judgment are frequently made when a stranger to the action is involved, as for instance, when a third person applies for leave to intervene, or where one applies to punish a stranger for contempt, and chooses to take an order to show cause instead of an attachment. The former is a proceeding in the action, the latter is a new special proceeding.
      But, on the other hand, motions after judgment have been held not to be motions in the action within the provisions of law restricting the moving party to the county where the action is triable, or certain neighboring counties; and the court of appeals put the exemption of motions after judgment from these restrictions, on the ground that the motion is not strictly in the action.
      Again, in the removal of causes, the case of a defendant let in after judgment, on the ground that he was only served constructively, is deemed not a trial of the original action, but practically a new action.
    
   Andrews.

“The right of a party to an action to have the evidence of witnesses taken upon commission, and the power of the court to award a commission, depend solely upon the statute” (McCall v. Sun Mutual Ins. Co., 50 N. Y. 332). “ The provisions of the Code of Civil Procedure, in reference to taking depositions out of the State, relate to actions only. The statute which authorizes depositions to be taken without the State, for use within the State, relates to actions only, and neither by its terms nor any implication can it be extended to any other mode or form of proceeding” (In the Matter of an Attorney, 83 N. Y. 165). It was also held in Champlin v. Stodart (64 How. Pr. 378) that a commission could not be issued to take the testimony of a foreign witness to be used in supplementary proceedings; and in Stake v. Andre (18 How. Pr. 159) it was decided, under the provisions of the old Code, which are similar to those of the present Code, that a commission could not be issued to examine a party to an action for the purpose of procuring his testimony to be used on a special motion.

The application, in the present case, is for a commission to take the testimony of Mr. Evans, to be used on a motion ’ by a person not a party to the action, to be relieved from a purchase made under a judgment of foreclosure and sale. The cases above referred to are decisive of the application, and the motion must be denied, with $10 costs, on the ground that the court has no power to issue a commission to take Mr. Evans’ testimony to be used for such purpose. 
      
       Compare Paddock v. Kirkam, 102 N. Y. 597; aff’g 38 Hun, 376, holding 2 R. S. 89, § 37, providing that proceedings upon a reference of a disputed claim against the estate of a deceased person, shall be' “in all respects as if the reference had been made in an action,” authorized the issue of a commission to take testimony out of the State. Distinguishing and explaining Wood v. Howard Ins. Co., 13 Wend. 646; In re Whitney, 4 Hill, 533.
     