It is not claimed but that the order of James, J., was a proper one, so far as it related to a discovery of books, &c'. But it is said that the provision prescribing the consequences of not obeying the order is unauthorized and void.
The proceedings to obtain a discovery of books and papers are prescribed by 3 R. S. pp. 293, 294, §§ 60-64, 66, 5th ed. There is nothing in those sections that authorizes the insertion in the order for discovery, of the consequences of not obeying it. Section 65 provides that the court may nonsuit the party disobeying the order, strike out a plea, or debar him from any. particular defence in relation to which discovery is sought. Such an order can only be made after the party is proved to be in default, and no benefit can result from inserting in the order which of these several penalties will be inflicted if the discovery is not made.-
We have no means of ascertaining the reasons that *187induced the judges who framed the rules to insert such a provision in the 16th rule of the court, (now rule 20.) But the insertion of such a provision cannot render the order for discovery irregular or invalid. It is simply an unnecessary provision.
The provisions of the Code relating to discovery furnish no authority for inserting the provision under consideration in the rule.
If the insertion of such a provision in an order for discovery could affect its validity, we apprehend that the rule is confirmed and legalized by section" 13 of chapter 408 of the laws of' 1870. It declares that the rules adopted by the judges, now in force, shall remain in force until altered or abolished by the judges authorized to revise the samé.
But it is not necessary to invoke the aid of the statute, to support the order. The provision declaring the consequences of disobeying the order is entirely harmless. ■
As the defendants procured the insertion in the order of James, J., of 'the provision giving leave to apply to another judge for an order to show cause, they cannot be heard to complain of it now.
Technically, the papers on the motion before Judge James were filed within ten days from the time they were delivered to the clerk by the judge, who for that purpose must, under the circumstances, .stand in place of the clerk.
I entertain no doubt of the jurisdiction of the Special Term in Saratoga to entertain the motion to set aside the orders of Judges James and Doolittle.
Although Special Terms are required to be held in the several counties, their, jurisdiction is not limited to cases arising in the county, or even the judicial district, in which they are held. They have jurisdiction to hear and decide motions from any part of the State. It is irregular to make a motion out of the district in which the place of trial is laid; except that it may be made in *188a county of another district adjoining the district in which the place of trial is.
[Fourth Department, General Term, at Rochester, April 1, 1873.Mullin, Talcott and E. JD Smith, Justices.]
It is competent for counsel to agree to have a motion heard and decided at any Special Term in any county in the State, and the order made in it is reviewable when made in a county other than that designated by the Code, as if it were made in the proper county.
The order of the Special Term is affirmed, with $10 costs. '