
    GARDNER v. THE ROYCROFTERS et al.
    (Supreme Court, Special Term, Erie Comity.
    March 12, 1907.)
    Depositions—Nonresident Witnesses—Statutes.
    Code Civ. Proe. § 888, subd. 5, provides for issuance of a commission to take depositions without the state, where the testimony is to be used upon the prosecution or defense of issues of fact joined in an action pending in a court of record. Section 894 provides that an open commission can be had where the testimony is “material and necessary in the prosecution or defense of the action.” Held, that an application for a commission to take testimony of nonresident and absent witnesses material to a motion yet to be made to punish a party for contempt, upon which no issues have been joined, must be denied.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, § 19.J
    Action by Frederic W. Gardner against the Roycrofters and Elbert Hubbard. Application by plaintiff for an order directing that a commission be issued to take testimony in another state for use on a contemplated motion to punish defendant Hubbard for contempt. Application denied.
    Bissell & Riley, for plaintiff.
    Keneficlc, Cook & Mitchell, "for defendants.
   BROWN, J.

The power of the court to award a commission depends solely upon the statute. It is the contention of the plairfiff that subdivision 5 of section 888 of the Code of Civil Procedure is authority under which the court may exercise the power to issue the commission prayed for. A careful examination of Stake v. Andre, 18 How. Prac. 159, Crane v. Evans, 18 Abb. N. C. 444, Stubbs v. Ripley, 39 Hun, 623, and Matter of Plumb, 64 Hun. 317, 19 N. Y. Supp. 79, satisfies me that a commission to take the testimony of witnesses without the state, for use in the state, under subdivision 5 of section 888 of the Code of Civil Procedure, can only be issued where the testimony is to be used upon the prosecution or defense of issues of fact joined in an action pending in a court of record. The language of the subdivision itself will not permit of any other meaning or construction. There must be issues of fact joined in an action pending in a court of record; that is, issues of fact joined in the prosecution of which the testimony is material to the applicant. This application is for a commission to take testimony of nonresident and absent witnesses material to a motion yet to be made to punish the defendant for contempt, upon which no issues have been joined. An open commission can only be had where the testimony is “material and necessary in the .prosecution or defense of the action.” Section 894. What action? An action pending in which issues of fact have been joined. Section 894. Subdivision 5 of section 888 is applicable only to actions when the application for a commission is made to the Supreme Court and other courts of record. There is no action pending to punish the defendant for contempt.

The application must be denied.  