By the Court,
Nelson, Ch. J.The matter in controversy between these parties is not within the statute authorizing the award of a commission to examine witnesses residing out of the state, as there is no action pending in the court and no issue of fact joined. (2 R. S. 393, § 11.) The right to the commission depends altogether upon the statute, no such proceeding being known to the common law. (Tidd, 741; Francis v. Gilmore, 1 Bos. & Pul. 177; 1 Archb. 174.) This case is the same in principle as that of Wood v. Howard Ins. Co., (18 Wend. 646.)
Motion denied.