
    WILLIAM S. BURNETT, Plaintiff and Respondent, v. C. BROWN SNYDER, Defendant and Appellant.
    I. RECITALS IN ORDERS, EFFECT OF.
    
    1. Questions of fact, other than upon the pleadings, arising on a motion, reference as to (Code, § 271).
    
      (а) Order oe reference reciting “ that the Court was DESIROUS OF BEING ADVISED ON THE FACTS.”
    1. Recital equivalent to saying that a question of fact had arisen on the motion, as to which the court desired further proof.
    2. Power of the court. In such case the court has power to order a reference of its own motion.
    (б) Effect of such recital, when not impaired by
    OTHER RECITALS.
    1. It is not impaired by further recitals that the party against whom the motion was made, had given notice to the moving party to produce, as to certain particulars, further affidavits from persons on whose affidavits he based his motion ; that the further affidavits were declined to be produced ; that the party who gave the notice applied for the reference, which was opposed by his adversary; and that the order of reference was made “on reading and filing a notice of demand of said affidavits, served on the attorneys of the defendant, and proof of service of the same upon them.,
    
    
      Before Curtis, and Van Vorst, JJ.
    
      Decided August 1, 1876.
    II. PAETT TO ACTION, EXAMINATION OF.
    
    1. § 271 of Code; no examination of, can be had upon a reference
    under subdivision 3 of this section.
    Appeal from an order.
    The plaintiff obtained an order of attachment against the defendant as a non-resident of this State. Thereupon defendant, upon affidavits tending to show his residence in this State (among which affidavits were those of his wife, his daughter, and himself), obtained an order requiring plaintiff to show cause why the attachment should not be set aside. Thereupon plaintiff’s attorney served on defendant’s attorney a notice to produce on the hearing of the motion to vacate, affidavits of the defendant, his wife and daughter, as to certain particulars in the notice specified, all bearing on the question of residence. The notice, if complied with, would have operated in some measure as a cross-examination. When the motion came on to be heard, defendant declined to produce the affidavits called for by the notice. Thereupon an order was made, which after reciting the giving of the notice, and the declination of defendant’s attorneys to comply therewith, and that the court was “ desirous 
      
      of being advised on the facts f and that the plaintiff’s attorney applied for an order appointing a referee to take the testimony of defendant, his wife, and daughter, to be used upon motion, and that counsel for defendant had been heard in opposition thereto, did, upon the reading and filing of said notice, and proof of service thereto on the defendant’s attorney, order a reference to take, for the purpose of being used on said motion, the affidavits of defendant, his wife, and daughter, as to the particulars specified in the said notice, and ordered defendant, his wife, and daughter, to appear before the referee for the purpose of such examination, on ten days’ notice to the defendant’s attorney.
    From this order the defendant appeals.
    
      Wilson & Wallace, attorneys, and William G. Wilson, of counsel for appellant, urged :
    I. The court had no power to make the order in question. 1. No foundation had been laid for the granting of such order. The Code (§ 401, subdivision 7) furnishes the only authority for such an order, and prescribes the mode in which it can be obtained ; it requires (1) that a party shall intend to oppose a motion ; (2) that it shall be necessary for him to have the affidavit of some person for that purpose ; and (3) that that person has refused to make the same. And the court should be satisfied by “competent and sufficient proof,” that these requirements are met in the case before it, before such order can be made (Moses v. Banker, 34 How. Pr. 212 ; Cockey v. Hurd, 14 Abb. N. S. 183; Erie Railway Co. v. Gould, Id. 279). But-in the present case none of these requirements are met. There is no evidence (1) that, the plaintiffs had any intention of opposing the defendant’s motion, or of doing anything more than embarrassing and delaying his application to the court; or (2) that the affidavits asked for, or any affidavits, are necessary to the plaintiff; or (3) that any of the persons named have refused to make the affidavits asked for, or that any affidavits have been drawn or presented to them. The plaintiffs’ application was based solely on the service upon the defendant Snyder’s attorneys of the notice, requiring them, to produce affidavits of the defendant Snyder, and of his wife and daughter, and on the failure of such attorneys to produce such affidavits. This paper is ineffectual for any purpose. 2. It is attempted to save the order by the introduction of the recital; “ the court being desirous of being advised on the facts,” but this attempt will be futile. The preceding recitals of the order show that the application was based on section 401 of ¡he Code, as in fact it was. But that section gives no authority to court or judge to order a reference, unless the above mentioned requirements have been complied with fully. Nor is there any authority by which the court, of its own motion, can order such a reference. By section 271, subdivision 3, the court may, on the application of either party, or of its own motion, direct a reference “where a question of fact, other than upon the pleadings, shall arise upon a motion or otherwise, in any stage of the action.” But this section cannot be held to authorize the order in question, for here there was no question of fact; the motion had never been argued; the facts on which the defendant’s motion was based had not been presented to the court; all that had come before the court was the plaintiffs’ application to procure affidavits with which to oppose such motion when it should come to be argued—necessarily such application is preliminary to any such question of fact arising on the motion. Furthermore, the order itself does not recite that any such question of fact had arisen, but recites the application for affidavits, and, in fact, no such question had arisen.
    
      Martin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel for respondent urges :
    I. This reference is made under section 271 of the Code of Procedure: “ § 271. When reference may he compulsorily ordered. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases : ”...... 3. Where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action.
    II. This case clearly comes not only within the language, but also within the spirit and intent of that section. There was a question of fact to be decided, namely: Where did the defendant, Snyder, live? The court had the right to refer the matter to a referee to take the testimony of the defendant, Snyder, and his wife and daughter, for its own information. The order recites as follows : “ And the court being desirous of being advised on the facts.” This subdivision of section 271 of the Code, was framed for the purpose of enabling the court to ascertain the exact facts on a motion, where there was doubt or danger of being imposed upon. The course taken by the plaintiff’s attorneys, in serving notice of demand for further affidavits, was for the purpose of bringing the matter in the best manner before the court.
    III. The order is in furtherance of justice, as the defendant evidently is unwilling to disclose the real fact as to his residence.
    
      
       Notes by Reporters.—The point as to whether the court, either on its own motion or on application of a party, can order a reference under subdivision 3 of § 271, upon the mere suggestion that a question of fact is involved, or whether it must be satisfied, after a hearing or examination of the papers on the motion, that there is such a conflict of testimony, as, in its discretion, renders a reference either necessary or proper, before it can exercise the power, was not distinctly passed on by the court. The appeal papers did not present it. The recital in the order “that the court was desirous of being advised on the facts,” carried with it, as held by the court, a declaration not only that a question of fact was involved, but that the court had so sufficiently heard or examined the papers, as to determine that a reference was necessary to satisfactorily decide it.
      The appeal book showed nothing to contravene this effect of the recital in question ; the other recitals not being necessarily in conflict.
    
    
      
       A point which may possibly arise under sub. 3 of § 271, viz.: As to whether the proper form of the order of reference is not to take such evidence as either party may adduce, was not considered or passed on.
    
   By the Court.—Van Vorst, J.

The order appealed from, among other things, recites, “that the court being desirous of being advised on the facts,” ordered that a referee be appointed to take the affidavits of the persons named to be used on the motion. This is only another way of stating that a question of fact had arisen on the motion. In such case the court, upon the application of either of the parties, or upon its own motion, could order a reference (Code, § 271).

Sach direction is in the interest of truth; the motion being pending, and brought on for hearing, and a conflict as to questions of fact appearing, it was proper for the judge, if he desired further to be advised of the facts, so as properly to dispose of the matter, to direct a reference to ascertain the facts.

Although all the papers are not before us, sufficient appears to indicate what the disputed facts were. They bore upon the question of the residence of the defendant, C. Brown Snyder, against whose property attachments had- been obtained, on the alleged ground of his non-residence.

The defendants had moved, upon ex parte affidavits, to set aside the attachments, and the court directed a reference, so as to be advised of the facts.

The points as to which inquiry was to be made, are fully stated in the order. They all relate to the question of the residence of the defendant.

The order is, however, defective, in directing that the affidavit of the defendant should be taken. King v. Leighton (58 N. Y. 883), is an authority to the effect, that a party to an action cannot be compelled to submit to an examination, at the instance of the adverse party, save as a general witness in the cause. The order appealed from should be modified, by striking out the direction to the referee to examine the defendant, and it is otherwise affirmed, but without costs.

Curtis, J., concurred..  