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People ex rel. New York Edison Co. v. Willcox

149 A.D. 671 Court First Department, Decision date 1912-03-29 English

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p. 671
The People of the State of New York ex rel. The New York Edison Company, Relator, v. William R. Willcox and Others, Respondents.
First Department,
March 29, 1912.

Headnote

Certiorari — record — omission of return — remedy where return defective.
A record in the Appellate Division on certiorari directed to the Public • Service Commission and to a public service corporation should contain the return of the latter as well as that of the Commission.
The remedy of the relator if the return were defective or contained improper matter was a motion for a further return, and in the absence of such motion the return cannot he excluded from the record.
Motion to dismiss a writ of certiorari or that the printed record filed by the relator be corrected by adding to it the duly certified copy of the return to said writ made by the Long Acre Electric Light and Power Company and filed with the clerk of the county of New York on January 12, 1912.
Graham & L’Amoreaux, for the motion.
Morgan J. O’Brien and Henry J. Hemmens, opposed.

The relator obtained from the Supreme Court a writ of certiorari directed to the Public Service Commission of the State of New York for the First District and to the Long Acre Electric Light and Power Company. After the necessary recitals the writ commanded those to whom it was addressed within twenty days after the service of the writ that they “ do certify and return all and singular your proceedings and decisions had and made in the premises, together with all testimony and evidence, both documentary and otherwise, upon which you proceeded or arrived at your determination in the premises to the end that your determination and action in the premises may be reviewed and corrected on the merits in this court, and your proceedings and orders may be reviewed and corrected and said orders vacated and annulled if to the court it shall seem just and proper.” In response to that writ the Public Service Commission made and filed its return as prescribed by the writ. The Long Acre Electric Light and Power Company also made and filed a return to this writ. The relator, disregarding the return of the Long Acre Company, caused the papers to be printed and filed which contain the petition for the writ and the instruments thereto annexed, the writ itself, and the return by the Public Service Commission, but did not print and file the return of the Long Acre Company.

By section 2134 of the Code of Civil Procedure it is provided that “the clerk, with whom a writ of certiorari is filed, and each person, upon whom a writ of certiorari is served, * * * must make and annex to the writ, or to the copy thereof served upon him, a return, with a transcript annexed, and certified by him, of the record or proceedings, and a statement of the other matters, specified in and required by the writ.” Section 2135 of the Code of Civil Procedure authorizes the court to direct a further return if the return is defective and to enforce the making of the return. Section 2137 of the Code of Civil Procedure provides for bringing in a third party specially and beneficially interested in upholding the determination to be reviewed. And section 2138 of the Code of Civil Procedure pro vides that the cause must be heard at a term of the Appellate

p. 673
Division of the Supreme Court upon the writ and return and the papers upon which the writ was granted.

The Long Acre Company having been made a party to the proceeding, and having by the writ been required to make a return, its return became a part of the proceeding upon which the matter was required to be heard, and we think, therefore, that the return of the Long Acre Company should be part of the record upon the appeal. If the return is defective or contains matter improperly inserted the relator could have made a motion to have it corrected, but no such motion having been made, we think the return must be included in the papers upon which the proceeding is to be determined.

The motion is, therefore, granted to the extent of requiring the relator to annex to the printed papers upon which the proceeding is to be heard a copy of the return of the Long Acre Electric Light and Power Company.

Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Motion granted to extent stated in opinion. '