On February 16, 1920, an ex parte order was signed for the appointment of a referee to take the deposition of the appellant as a witness to be used in an action which had not then been commenced by the respondent against the Crompton Building Corporation and another, and on the same day a subpoena was issued to and served upon the appellant to appear before the referee on February 18, 1920, on which day the hearing was adjourned to February 21, 1920. The order of reference was based upon the affidavit of the attorney of the plaintiff, from which it appears that the summons and complaint had not been served up to February 16, 1920. The complaint was not verified until February 24, 1920. As matter of fact there was no action pending on February 21, 1920. When the appellant attended before the referee on February 21, 1920, he objected to being sworn upon the ground that there was no pending action and, therefore, no power in the court to compel him to testify. On February 25, 1920, he moved at Special Term to vacate the order of reference upon the same grounds as urged before the referee, but that motion was denied. The learned court in a brief memorandum based its denial upon Wallace v. Baring (2 App. Div. 501) and Allen v. Mayer (73 N. Y. 1).
In Wallace v. Baring (supra) the record on appeal shows *22that as matter of fact the referee was appointed a considerable time after the action had been commenced and the summons served on one of the defendants.
Allen v. Mayer (supra) was an action in which a warrant of attachment had been granted. The motion to vacate the attachment was based upon the ground that the Court of Common Pleas of the City of New York had not acquired jurisdiction to grant the warrant, “ for the reason that the summons had not been served, the defendant not being a resident of the city.” .Said the court: “ This would be a good point but for the provisions of the Code (Kerr v. Mount, 28 N. Y. 659). The Code, section 227,* which authorizes the issuing of an attachment and provides that ‘ for the purposes of this section an action shall be deemed commenced when the summons is issued, provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days.’ ”
The court thus upheld the jurisdiction of the court upon the ground that in that case an action had been commenced by the issuance of the summons under the Code provision above quoted and treated the action as a pending one within the contemplation of law.
The case at bar is not concerned with an application for an attachment. There is nothing stated in section 885 of the Code of Civil Procedure under which the order of reference was ostensibly granted, which would indicate that such an order may be made in other than a pending action. Moreover, section 753 of the Judiciary Law, which re-enacted section 14 of the Code of Civil Procedure, relating to contempt proceedings, provides: “ A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court, may be defeated, impaired, impeded, or prejudiced, in either of the following cases,” among which is the refusal of a witness to be sworn. (Subd. 5.) This, however, was not an action pending in this court when the order 'of *23reference was signed nor when the alleged disobedience of the witness before the referee took place.
Under the circumstances the order appealed from, granting plaintiff’s motion that the witness be adjudged guilty of contempt of court, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs; and .the order denying defendant’s motion to vacate the order appointing a referee reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur.
Order granting plaintiff’s motion reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs; order denying defendant’s motion reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
See Code Proc. § 227, as amd. by Laws of 1866, chap, 824, and. Laws of 1875, chap. 28.— [Rep.