In Inglehart, adm’r &c. vs. Johnson, decided at the late Monroe circuit and special term, it was held that a motion must be made within the district in which the action is triable, or in a county adjoining the county in which it is triable. That such was the true reading of section 401 of the Code. It was therefore irregular to notice the motion for the commission in Orleans county; but the motion was granted without opposition, and the question is whether the plaintiff had a right to treat the order as a nullity. The plaintiff’s counsel has referred to the cases of Spencer vs. Barber (5 Hill, 568); The Methodist Epis. Church vs. Tryon (2 How. Sp. T. R. 132), and Crary vs. Oliver (id. 135), as authorities showing the order a nullity. Those were all cases of supreme court commissioners granting orders in cases where they had no jurisdiction, and were clearly decided right (see 2 R. S. p. 280, § 20; p. 281, § 31, and rule 97 of rules of the late Supreme Court, ed. of May 1845). The powers of supreme court commissioners were created and limited by statute, and where they transcended such powers they acted without jurisdiction, and their acts were of course null and void. But this court at the general and special terms thereof is not dependent upon the legislature for its inherent powers, They are derived from the constitution. By § 3 of art. 6 of that instrument, general jurisdiction in law and equity is conferred upon the Supreme Court. Section 6 of the same article provides for holding general and special terms. It is a defect of power only that can render the act of the court void, and justify a party in treating it as a nullity. The distinction is between an absence of authority and an irregularity. In the latter case, as where an insufficient or no notice of the motion has been given, or the papers are otherwise defective, or where the motion as in this case is made in a wrong *369county, the order is not void, but merely irregular, and is binding until vacated or set aside. If the motion for the commission in the present case had been opposed, and the fact shown that the place of trial was in Wayne county the court, upon the objection being raised, would undoubtedly have declined to hear the motion. I have looked through the papers upon which the motion for the commission was founded, and do not perceive that they show the place where the trial was to.be had. I know of no rule of practice requiring such fact to be shown in the moving papers» The statute authorizing commissions to issue does not require it (2 R. S. 393, § 11); nor is it stated to be necessary on the books of practice (Gr. Pr. 2d ed. 592-3; Dunlap’s Pr. 544-5; Caines’ Pr. 400-1).= If it is necessary, "it can only be so in order to show that the motion is made in the proper county under section 401 of the Code. If it is not, then it follows that the order in this case was not even irregular. But be this as it may, I think in as much as the constitution has given the court general jurisdiction throughout the state, there was no want of power in the special term in" Orleans county to grant the or der in question; and until it is set aside, revoked or rescinded, it is as binding as if it had been made in the county of Wayne (see Gould vs. Root, 4 Hill, 454).
I think, therefore, the plaintiff was irregular in disregarding the order and that the inquest should be set aside. But as themain question raised is new, and so far as I know has not before received a judicial examination, the motion is granted without costs.