Rice vs. Ehle and others

Rice vs. Ehle and others. There is nothing in the provisions of the Revised Statutes relating to a discovery of books and papers, that authorizes the insertion, in the order, of the consequences of not obeying it. But rule 16 of the Supreme Court (now rule 20) provides that the order shall declare the consequences of an omission to comply with the same; and although there is no authority, in the provisions of the Code relating to discovery, for inserting that provision in the rule, yet the insertion of such a clause in an order for discovery cannot affect its validity; the clause being entirely harmless. If the insertion of such a provision, in an order for discovery, could affect its validity, rule 20 is confirmed and legalized by section 13 of chapter 408 of the laws of 1870. Parties who have procured the insertion, in an order, of a provision giving leave to apply to another judge for an order to show cause why such order, has not'been complied with, cannot be heard to complain of it, afterward. 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 a county of another district adjoining the district in which the place of trial is. 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 plaintiff sued the defendants for negligence in making the milk furnished by him to them, as proprietors of a cheese factory, in Herkimer county, into cheese. The plaintiff applied to the Hon. A. B. James, a justice of this court, for an order requiring the defendants to make discovery of certain books and papers belonging to them, or under their control. After hearing the parties, he made an order, pursuant to the prayer of the petition presented to him, requiring the defendants to make "such discovery, and that they give notice to the plaintiff’s attorney of the time of making such deposit, and for a failure to comply with the order the defendants should be precluded from making any defence, and their answer should be stricken out, unless the defendants should, immediately upon the expiration of the time allowed for making the discovery, apply to a justice of this court for an order for leave to. show cause why this order had not been complied with; and the defendants’ attorney was required to have his clients present before the judge, making the order, for oral examination. An order to show cause was obtained from Doolittle, J., which was finally vacated by him, and an order made making the order of James, J., absolute. A motion was noticed on behalf of the defendants, for a Special -Term in Lewis county, to vacate the orders above mentioned. By the agreement of counsel it was heard at a Special Term in Saratoga county, held by Bocees, J., and it was denied, and from the order then made the defendants appealed. See Broderick v. Shelton, (18 Abb. 213.) [MAJORITY — By the Oourt, Mtjllih, P. J.] By the Oourt, Mtjllih, P. J. 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 induced 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 a 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. '