Pearson v. Brace

131 Misc. 663, 227 N.Y.S. 631, 1928 N.Y. Misc. LEXIS 762

• Court: New York Supreme Court
• Decided: February 7, 1928
• Status: Published

Opinion

Rodenbeck, J.

The respondents, on December 4,1925, rejected the bills presented by the petitioner, as a justice of the peace, for certain years. In their return the respondents have included a number of affidavits verified since the action of the respondents upon these bills, showing the alleged illegal and fraudulent character of some of the charges. There is nothing in the return showing that the information contained in these affidavits was before the respondents. So far as appears by the return, the information was gathered subsequent to the action of the town board and had no bearing upon such action. The affidavits, therefore, appear to be irrelevant matter, foreign to the subject under consideration. There must be authority for strildng out such matter under the guise of a further return. (Civ. Prac. Act, § 1298.) In People ex rel. Joline v. Wilcox (198 N. Y. 433) the matter which was stricken out (134 App. Div. 563) was before the commissioners and was a basis for their determination. It was, therefore, not foreign to the subject under consideration and was matter very appropriately to be considered upon the review of the return. “ Great liberality is awarded officers or boards of officers in making returns as to the facts upon which they based their action ” (People ex rel. Joline v. Willcox, supra, 437), but this does not go to the extent of permitting them to introduce ex parte evidence not before them when they took action.

Motion granted requiring the respondents to make a further return omitting the 6th paragraph of said return down to the words “ said criminal docket ” and the affidavits attached to the return mentioned therein, with ten dollars costs to abide event.

So ordered.