The reference to which these orders relate was to take testimony upon, and opposed to the application to continue the injunction order. It was made under the authority of section 1015 of the *624Code of Civil Procedure, authorizing the court to refer a question of fact arising upon a motion to the hearing and determination of. a referee. And as it was not in any sense a trial of the action, the court had the authority to control the proceedings by its order, and to direct the order in which the persons to be examined should be produced before the referee. There was good reason for such a direction, for it has been denied on behalf of the plaintiffs that two of the most important persons alleged to have participated in the transactions brought in issue in the action and on the motion, were not living, natural individuals, but that the assertion of their existence and conduct was a device adopted by the principal defendant to conceal his misappropriation and conversion of the funds of this estate. There was great propriety for that reason, and because of the inability of the plaintiffs to find or discover any such individuals in giving this direction. For if there were no such persons then it followed that this defendant had not invested the money as it is alleged in his behalf that he did, and the probability would follow that the money had been misappropriated, and may have been diverted to pay the purchase-price in part of the real estate described in the complaint. It was to bring this part of the controversy between the parties to a crisis that this order was made, and it was very surely justified by the facts as they were disclosed in the case.
So much of the order from which the defendant Hattie M. Ripley has appealed as directed the parties to proceed upon this part of the reference on two days’ notice was also within the power and discretion of the court. What it was evident necessarily to secure was a speedy doAnnination of the controversy which there seemed to be a disposition to embarrass and prolong. To correct and avoid that, this order was made, entitling either party to proceed upon the reference of the motion for the continuance of the injunction on two days’ notice." But if the order should prove to be too summary on this subject, the referee was not deprived by it of the usual discretion vested in referees over hearings of this and other descriptions, for he was still left at liberty to adjourn the proceedings whenever that might be found to be necessary or advisable under the circumstances made to appear.
*625As tbe reference of the motion included, no part of the issues in the action, neither party, under the provisions of the Code, would certainly be entitled to take the examination of the witnesses required to be produced before the referee by commission. For the reference of a question of fact arising upon a motion does not clearly appear to be such a reference as to entitle either party to examine witnesses on commission, under the authority of sections 888, 893 and 891 of the Code of Civil Procedure. A commission, it is true, may be issued in an action where no issue of fact has been framed, but that can be done only in certain specified cases. They have been mentioned and provided for in subdivisions 1, 2 and á of section 888 of the Code. But where a commission may be issued by virtue of this authority the evidence designed to be obtained is probably intended to relate to the controversy in the action itself, as distinguished from one arising upon a special motion. It may be that the court might be disposed to consider itself authorized, under special circumstances to direct the issuing of a commission on the reference of a motion under the general authority of subdivision 1 of this section. But that clearly would never be done where the object of the reference was as it has been in this case, to require the production of the individuals personally whose affidavits had been read, to appear before the referee and in that way reveal their own identity and existence. If they were not to be produced in that manner, then no useful object could be promoted by the reference, for by taking the testimony by commission but little more would be accomplished than already had been by the affidavits themselves. It was important and that was the only importance of the reference for the continuance of the injunction, that the persons whose affidavits had been produced and read should be brought before the referee personally and subjected to the effect of a cross-examination, and that end would be defeated by allowing the testimony of either to be taken by commission. As much as that was also provided for by the order of reference itself. For in that order the referee was directed to take such further proof as any of the parties might submit, and that the parties by whom affidavits had been submitted upon the hearing of the motion by the court, should produce the affiants before the referee for cross-examination and that the referee should report the proofs taken by *626him and‘the facts lie might find from that proof. No appeal has been taken from this order and it accordingly remains in full force and effect in the case. This order by its language requires that the individuals themselves whose affidavits had been submitted, should be produced before the referee for cross-examination which could not be done if their testimony could be taken by commission. And for that reason it is to be so construed as to forbid the issuing of a commission for the examination of either of these affiants. The order prohibiting in direct language the issuing of commissions did no more than the order of reference itself.
These 'orders were all within the power of the court over the .subject of the reference. The leading circumstances of the litigation required them to be made substantially in this manner, and they should each be affirmed, together with the usual costs and disbursements.
Davis, P. J., and Brady, J., concurred.Orders affirmed, with ten dollars costs and disbursements.