People ex rel. Gerald v. Feitner — 37 A.D. 362

Majority

p. 362

The People of the State of New York ex rel. Mary A. Fitz Gerald, Respondent, v. Thomas L. Feitner and Others, Commissioners of Taxes and Assessments of the City of New York, Appellants.

Headnote

Qertiomri — remedy of the party to whom it is addressed when its requirements are too broad.

An officer to whom a writ of certiorari has been directed, is not justified in refusing to make a return according to its explicit terms because the requirements thereof, by calling for a return as to matters not pertinent to the grievance, complained of, are broader than they should be; his remedy is by a motion for a modification of the writ.

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from m order of the Supreme Court, made at the New York Special Term

p. 363

and entered in the office of the clerk of the county of New York on the 9th day of December, 1898, requiring them to file a further return to the writ of certiorari issued in this proceeding.

Theodore Connoly, for the appellants.

Woolsey Carmalt, for the respondent.

It is conceded upon the part of the appellants that a return has not been made according to the directions of the writ of certiorari; but it is claimed that certain of the directions contained in said writ were not pertinent to the grievances alleged therein and that, therefore, a return should not be compelled in respect thereto. We think that the appellants have mistaken their remedy. If the requirements of the writ were broader than they should have been, the appellants should have moved for a modification of the writ so that they might be excused from making return as to unnecessary and improper matters. Where a writ is explicit in regard to what shall be returned, it is not for the officer to determine whether it shall be obeyed, or whether he may refuse to comply with its directions. The court having ordered a particular return, such return must be made in order to comply with the writ, unless upon a proper application the writ is modified so as to excuse such a return.

We think, therefore, that the order .appealed from should be affirmed, with costs, but with leave to the appellants, upon payment of the costs of the appeal and of the motion in the court below, to apply for a modification of the writ.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with costs, with leave to appellants, upon payment of costs of appeal and of the motion in the court below, to apply for modification of the writ.