People ex rel. Dreicer v. Ouderkirk — 57 N.Y. St. Rep. 376

Majority

p. 376

The People ex rel., Jacob Dreicer, Resp’t v. Isaac Y. Ouderkirk et al., as Assessors, etc., et al., App’lts.

(Supreme Court, General Term,, Third Department,

Filed February, 1894.)

Headnote

1. Certiorari—Return.

Where the assessment roll has been filed in the town clerk’s office, the

p. 377

assessors can obey the writ of certiorari by returning sworn or certified copies thereof.

2. Same—Tender of Payment of Fees.

The tender or payment of fees therefore is a condition precedent, which, must be complied with before a return can be compelled by mandamus.

3. Same.

This rule applies to public bodies or officers as well as to individuals.

Appeal from an order of a special term commanding the defendants’ as town officers to make and file a return to a writ of certiorari without the payment or tender of their fees for making the same.

Edgar T. Brackett for app’lts; A. W. Shepard for resp’t.

The assessment roll which the relator by his certiorari desired to bring up for review, was at the time of granting of the writ, filed pursuant to law, in the town clerk’s office from which the defendants’ could not legally withdraw the same. But they could obey the writ by returning sworn or certified copies thereof. Winegard v. Kromer, 5 Misc. Report 54.

Such a return would however impose upon the defendants’ the labor and expense of making or procuring copies of the assessment roll.

Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned seems to be a condition precedent which must be complied with before a party can be compelled by mandamus to make such return.

This rule applies to public bodies, or officers as well as individuals. Accordingly this court held that a board of supervisors whose acts in refusing to allow a sheriff’s bill were sought to be reviewed on certiorari, could not be compelled to return their action, "and the bill presented to them for audit, until the fees for making such return was paid.

People ex rel., Sutliff v. Board of Supervisors of Fulton county, 64 Hun 375 ; 46 St. Rep., 470 . This case is in principle like the case at bar, and we think decisive of it. The order must be reversed with ten dollars ($10.00) costs and printing disbursements.

All concur.