p. 810The People ex rel. Joseph C. Higgins, Resp’t, v. Hugh J. Grant, Mayor, etc., et al., App’lts.(Supreme Court, General Term, First Department,Headnote
1. Certiorari—Court carrot strike out parts oe return.There is no authority for striking out any part of the return to a writ of certiorari because it may be irrelevant. When the officers to whom the writ is directed have returned matters not relevant to the review of the proceedings, it is not the practice to strike them out, but to disregard them on the hearing.
Where there are omissions of facts which may possibly be of advantage to the relator, a further return as to such matters may properly be ordered.
Appeal from an order directing that all resolutions or proceedings adopted, or had, subsequent to the removal of the relator, be omitted from the return to the writ of certiorari issued in this case, and for a further return stating the requests made by him to be confronted with the proofs and witnesses against him, and to be allowed to call witnesses in his own behalf.
Woolsey Carmatt, for app’lts; John Jeroloman, for resp’t.
The course of proceeding to be taken and followed in applications for, and proceedings upon, writs of certiorari, are now regulated and governed by the statute. And while the officersf or boards, to which the writ shall be directed, are required to return no more than a full account of the proceedings to be reviewed by means of the writ, no authority has been given for striking out any part of the return because it may be irrelevant. The officers and boards to which the writ is frequently directed are not so accustomed to preside over legal proceedings as to ensure a strict observance of the directions and province of the writ in making their return. They are liable th transcend, as well as to fall short, of, the directions in making their return. And when they have returned matters not relevant to the review of their proceedings, it has not been the practice to strike them out, but to disregard such matters in the hearing of the return. The court is more competent to do that than the persons usually are who are required to make the return.
The statutory provisions contain no authority for correcting the return on motion by striking from it irrelevant statements. But
p. 811the practice has heen to permit them to remain in the return, and to review the decision made upon what took place upon and in connection with the hearing and decision. That, toó, is the safer course to be followed, for if the court on motion were permitted to strike out portions of the return, it might be induced to extend its corrective authority to the exclusion of what might be very essential to a correct determination of the case. There is at least danger that the practice might result in injury to the relator’s case, while there can be none in the exercise by the court of review of its unquestioned authority to consider only what may legally be pertinent to the case itself.
As to omissions, by which a full and complete return of the proceedings has not been made, there the case is clearly different For the relator is then deprived of the right secured to him of a complete review of the proceeding against him. To avoid that the power has been provided for the court to order a further return. Code Civ. Pro., § 2135. And it previously existed as fully as it has been here provided.
To entitle him to a further return the relator has sworn that the return is defective in the respects ordered to be supplied. It is not entirely clear that he is right, but to avoid the possibility of injustice, a fuller statement from the board of the requests made by and on behalf of the relator, and the disposition made of them, is proper, for upon them and the disposition made of them, his case may very considerably depend. The part of the order requiring the further return as to these matters was proper, and it should be maintained. The order should accordingly be modified by reversing that part of it which directs any portion of the return to be stricken out, and denying so much of the motion, and affirming so much as directs the further return to be made. And this modification should be without costs of the appeal to either party.
Van Brunt, P. J., and Brady, J., concur.
p. 812The plaintiff, a Dane, came to this country in 1882, and in December, 1885, he went into the employment of the defendants, at their factory, which was at 156 West Twenty-seventh street. lie remained in that employment until the 1st of May, 1886, and on that day they commenced to move into the fourth and fifth floors of the next building. The plaintiff was directed to assist, and did so by sweeping away dust and gathering it in barrels. He and another person in the employment of the defendants placed the barrels upon the floor of an open elevator, to take them to the street, where they were unloaded, and the barrels returned to the elevator. The plaintiff, and the person with him also, went upon the elevator, and the latter endeavored to start the elevator, to go to the upper floors again. But the usual efforts for that object proved ineffectual. And then it was discovered that a brick had become wedged between the elevator and a wall rendering it immovable. The other person, with the knowledge, and at the suggestion of the plaintiff, then left the elevator to remove the brick, and he did remove it, when, on account of the rope having been slackened in the previous effort to start it, the elevator at once fell into the basement, a distance of about eight feet, producing serious and lasting injuries to the plaintiff, who had all the while remained in the elevator. This elevator had not been supplied with a safety clutch, which was described to be a bolt, or ball, connected with a heavy spring, kept in tension by a rope which, when slack or broken, permitted the spring to shoot the bolt into the slides in the side posts on which the elevator is guided, locking it firmly and immovably there. And it was for the want of this appliance that the defendants were prosecuted to recover indemnity for the injuries.