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People ex rel. Fitzgerald v. Feitner

56 N.Y.S. 93 Court N.Y. App. Div. Decision date 1899-02-10 English

Delivered by VAN BRUNT, P. J.

Contents

Majority

p. 93
(37 App. Div. 362.)
PEOPLE ex rel. FITZGERALD v. FEITNER et al.
(Supreme Court, Appellate Division, First Department.
February 10, 1899.)

Headnote

1. Certiorari—Return of Writ.
Where a writ of certiorari is explicit as to what shall be returned, it must be obeyed, unless, on application, it is modified so as to excuse such return.
3. Same—Remedy by Appeal.
Where certain directions contained in a writ of certiorari were not pertinent to the grievances alleged therein, the remedy is by motion to modify, and not by appeal.
Appeal from special term.
Action by the people, on relation of Mary A. Fitzgerald, against Thomas L. Feitner and others. From an order directing a further return to writ of certiorari, defendants appeal.
Affirmed.
Argued before VAN BRUNT, P. J., and McLAUGHHN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Theodore Connoly, for appellants.
W. Carmalt, for 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. All concur.