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Harris v. Whitney, 6 id. 175; People ex rel. Davis v. Hill, 65 Barb. 170; see Peck v. Foote, 4 How. Pr. 425.
8 2137. [Amended, 1895.] When third person may be brought in. — Upon the application of a person, specially and beneficially interested in upholding the determination to be reviewed, the court may, in its discretion, admit him as a party defendant in the special proceedings, upon such terms as justice requires. And a term of the appellate division of the supreme court, at which the cause is noticed for hearing, and is placed upon the calendar, may, in a proper case, direct that notice of the pendency of the special proceeding be given to any person, in such a manner as it thinks proper; and may suspend the hearing until notice is given accordingly.
In effect Jan. 1, 1896; L. 1895, ch. 946. New. See Bird v. Silsbie, 1 Cow. 582; People v. Robinson, 17 How. 534; 8. C., 29 Barb. 77; Sheridan V. Andrews, 52 N. Y. 945.
* $ 2138. [Amended, 1895.) Hearing upon return.— The cause must be heard at a term of the appellate division of the supreme court, held within the judicial department, embracing the county where the writ was returnable. Either party may notice it for hearing, at any time after the return is complete. Except as prescribed in the next section, it must be heard upon the writ and return, and the papers upon which the writ was granted.
In effect Jan. 1, 1896; L. 1895, ch. 946. New. People v. Kelly, 35 Barb. 444; 8. C. as Caldwell's case, 13 Abb. Pr. 405; People 1. Board of Police, 16 id. 337; but see Rule 44; Haines , Judges of Westchester, 20 Wend. 625 : People v. Powers, 19 Abb. Pr. 99; People v. Fire Com’rs, 73 N. Y. 437; Freeman v. Ogden, 40 N. Y. 105 Rawson v. Grow, 4 E. D. Smith, 18 Trust v. Delaplaine, 3 id. 219. # $ 2139. Id. ; upon affidavits. If the officer or other person, whose duty it is to make a return, dies, absconds, removes from the State, or becomes insane, after the writ is issued, and before making a return, or after making an insufficient return ; and it appears that there is no other officer or person, from whom a sufficient return can be procured by means of a new certiorari ; the court may, in its discretion, permit affidavits, or other written proofs, relating to the matters not suffi. ciently returned, to be produced, and may hear the cause accordingiy. The court may also, in its discretion, per. mit either party to produce affidavits, or other written proofs, relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of * See 10 Abb. N. C. 418.
+ See Rule 38.
the body or officer, to make the determination to be reviewed, where the facts, in relation thereto, are not sufficiently stated in the return, and the court is satis. fied that they cannot be made to appear, by means of an order for a further return.
New. 2 R. S. 271, % 261 (2 Edm. 280); Code of Proc. 363. Matter of Shotwell, 10 Johns. 301; Seymour v. Webster, 1 Cow. 168; Williams v. Albany Mayors' Court, 12 Wend. 266 ; People v. Wheeler, 21 N. Y. 82 People v. Kelly, 35 Barb. 414; S. c. as Caldwell's case, 13 Abb. Pr. 405; People v. Board of Police, 16 id. 337; Haines v. Judges of Westchester, 20 Wend. 625; People v. Fire Com’rs, 73 N. Y. 437; People v. Powers, 19 Abb. Pr. 99.
§ 2140. Questions to be determined.—The questions, Involving the mezits, to be determined by the court upon the hearing, are the following, only:
1. Whether the body or officer had jurisdiction of the subject-matter of the determination under review.
2. Whether the authority, conferred upon the body or officer, in relation to that subject-matter, has been pursued in the mode required by law, in order to authorize it or him to make the determination.
3. Whether, in making the determination, any rule of law, affecting the rights of the parties thereto, bas been violated, to the prejudice of the relator.
4. Whether there was any competent proof of all the facts, necessary to be proved, in order to authorize the making of the determination.
5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence of any of those facts, that the verdict of a jury, affirming the existence thereof, rendered in an action in the supreme court, triable by a jury, would be set aside by the court, as against the weight of evidence,
New. Baldwin v. City of Buffalo, 35 N. Y. 380 : People v. Smith, 45 id, 772 , 776, and 777 ; People v. Sanders, 3 Hun, 16; 5. c., sub. nom. Peo. ple v. Court of Special Sessions, 5 N. Y. Sup. Ct. (T. & C.) 260 ; People 0. Betts, 55 N. Y. 600; People v. Police Com'rs, 11 Hun, 513; People v. Sutherland, 16 id. 192; People 2. Weigant, 14 id. 516; People v. Eddy, 57 Barb. 593, 601; see, also, People v. Board of Excise and Police, 69 N. Y. 409; see 8 2147, post (see Sess. L. 1873. vol. 1, pp. 125 and 126); People v. Steele, 1 Sheld. 345, s. c, 56 N. Y. 664; People v. Police Com'rs of Troy, 55 How. Pr. 454; People v. Police Com'rs, 6 Hun, 229; 8. C., 52 Ilow. Pr. 289; People v. Board of Police, 72 N. Y. 415; People v. Sutherland, 18 Hun, 192; People v. Burton, 65 N. Y. 452. *
$ 2141. Final order upon the hearing. - The court, apon the hearing, may make a final order, annulling or
* See 1 Cio. Pro. R. 328.
confirming, wholly or partly, or modifying, the deter. mination reviewed, as to any or all of the parties.
New. L. 1868, ch. 828, % 5; People v. City of Brooklyn, 49 Barb, 136; People v. Reddy, 43 id. 529 ; People v. Fredericks, 48 id. 173; 33 How. 150; 46 N. Y. 70; People v. Ferris, 36 id. 213 ; s. C. 34 How. 189; People ex rel. v. City of Brooklyn, 14 Abb N. S. 115.
§ 2142. Restitution may be awarded. - Where the determination reviewed is annulled or modified, the court may order and enforce restitution, in like man. ner, with like effect and subject to the same conditions, as where a judgment is reversed upon appeal. New. See & 1292, ante.
$ 2143. Costs. -- Costs, not exceeding fifty dollars and disbursements, may be awarded by the final order, in favor of or against either party, in the discretion of the court.
See 22 2086 and 2100, ante; also & 2007, ante. See People v. Smith, 18 Hun, 227 ; People v. McDonald, 69 N. Y. 362; People v. Sherman, 15 Hun, 575; People v. Com'rs, etc., 76 N. Y. 65; see 2 R. S. 516, & 49 (2 Edm. 533), in certain cases.
$ 2144. Entry and enrollment of final order. - The final order of the court upon the certiorari must be entered in the office of the clerk where the writ was returnable. But before it can be enforced, an enroll. ment thereof must be filed. For that purpose, the clerk must attach together, and file in his office, the papers upon which the cause was heard; a certified copy of the final order; and a certified copy of each order, which in any way involves the merits, or necessarily affects the final order. New. See 22 1237, 1345, and 1354, ante.
$ 2145. Effect thereof. The filing of the enroll. ment in the office of the clerk where the final order is entered, as prescribed in the last section, is a sufficient authority for any proceeding, by or before the bod which, or the officer who, made the determination reviewed, which the final order of the court directs or permits. But where the execution of the final order is stayed by an appeal to the court of appeals, the pro. ceedings below are stayed in like manner. New. See & 1345, ante,
$ 2146." Body or officer"; " determination”; what they include. - The expression, "body or officer," sa
used in this article, includes every court, tribunal, board, corporation, or other person, or aggregation of persons, whose determination may be reviewed by a writ of certiorari ; and the word,“ determination," as used in this article, includes every judgment, order, decision, adjudication, or other act of such a body or officer, which is subject to be so reviewed. New.
$ 2147. Application of this article to certain special cases. - Where the right to a writ of certiorari is expressly conferred, or the issuing thereof is expressly authorized, by a statute, passed before, and remaining in force after, this article takes effect, this article does not vary, or affect in any manner, any provision of the former statute, which expressly prescribes a different regulation, with respect to any of the proceedings upon the certiorari to be issued thereunder. New.
$ 2148. Id. 3 to civil cases only. This article is not applicable to a writ of certiorari, brought to review a determination made in any criminal matter, except a criminal contempt of court. New.
CERTAIN SPECIAL PROCEEDINGS INSTITUTED
I. PROCEEDINGS RELATING TO INSOLVENT
DEBTORS AND TO PRISONERS.
TITLE II.- SUMMARY PROCEEDINGS TO RECOVER
THE POSSESSION OF REAL PROPERTY. TITLE III.- PROCEEDINGS TO PUNISH A CONTEMPT
OF COURT, OTHER THAN A CRIMINAL
CONTEMPT. TITLE IV.- PROCEEDINGS TO COLLECT A FINE. TITLE V.- PROCEEDINGS TO DISCOVER THE DEATH
OF A TENANT FOR LIFE.
OF A COMMITTEE OF THE PERSON AND
TITLE VIL-PROCEEDINGS FOR THE DISPOSITION OP
THE REAL PROPERTY OF AN INFANT,
GAGE BY ADVERTISEMENT. TITLE X.- PROCEEDINGS TO CHANGE THE NAME
OF AN INDIVIDUAL.