People ex rel. McNeary v. MacLean — 46 N.Y. St. Rep. 99

Majority

p. 99

The People ex rel. James F. McNeary, Resp’t, v. Charles F. MacLean et al., Appl’ts.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Certiorari—Motion to dismiss.

An objection that a writ of certiorari was not granted and served within the time limited by the statute can only be raised by motion to dismiss on that ground, and such motion is properly made at special term.

Appeal from order denying motion to dismiss writ of certiorari.

C. F. Collins, for app’lts; A. S. Warner, for resp’t.

This motion was founded upon the fact that it appeared upon the face of the petition that the certiorari had not been granted and served within the time provided by § 2125 of the Code.

It is conceded that such was the fact, but it is claimed that such objection must be raised by answer in consequence of the provision of § 2133 of the Code, which is as follows: “ Any order may be made or proceeding taken in the cause, in relation to any matter not provided for in this article, as a similar proceeding may be taken in an action brought in the same court.”

ít is clear that this section cannot be held to require pleadings upon a writ of certiorari, because a certiorari is a writ of review exclusively and the return to the writ must betaken as conclusive and acted on as true. If false in fact, the remedy is an action for a false return; and, if insufficient in form, by applying for a further and more specific return. People v. Fire Comrs., 73 N. Y., 437 .

The provisions of the section referred to apply, undoubtedly, to such proceedings as may be requisite and proper after a return has been made for the purpose of bringing the same on for review, or having the return made more specific if such relief is proper. But there is no way in which the question as to whether the court should have granted the writ can be brought up except upon a motion to set aside the writ.

It is urged that the only method in which the appellants could claim the advantage of the statute of limitations contained in § 2125, is by setting the same up in the return.

It is apparent that such cannot be the rule, because the Code requires no defense to the issuance of the writ to be returned, but simply the proceedings upon which the judgment of the inferior tribunal was founded.

Where it appears upon the face of the petition that the statute

p. 100

has run, it is not necessary that the fact should be brought before the court in any other manner.

It is to be observed that the writ of certiorari issues out of the supreme court, and that the return is made to the supreme court and is filed with the county clerk ; and it is only the hearing of the merits which is to be had at the general term. All incidental motions should be heard at the special term.

We think, therefore, that the court was in error in denying the motion and the order should be reversed, with ten dollars costs 'and disbursements, and the motion granted, with ten dollars costs.

Andrews, J., concurs.