People ex rel. Dreicer v. Ouderkirk

27 N.Y.S. 821, 83 N.Y. Sup. Ct. 119, 57 N.Y. St. Rep. 376, 76 Hun 119

• Court: New York Supreme Court
• Decided: February 13, 1894
• Status: Published

Opinion

MAYHAM, P. J.

The assessment roll which the relator, by his certiorari, desired to bring up for review, was, at the time of the 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. People v. Kromer, 5 Misc. Rep. 54, 25 N. Y. Supp. 48. 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 offices 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 were paid. People v. Sup’rs of Fulton Co., 64 Hun, 375, 19 N. Y. Supp. 773. This case is, in principle, like the case at bar, and we think decisive of it. The order must be reversed, with $10 costs and printing disbursements. All concur.