People ex rel. Melody v. Pound

Appellate Division of the Supreme Court of New York

People ex rel. Melody v. Pound

111 A.D. 395, 97 N.Y.S. 700, 1906 N.Y. App. Div. LEXIS 177

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 1906

StatusPublished

Cited by1 cases

This text of 111 A.D. 395 (People ex rel. Melody v. Pound) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Melody v. Pound, 111 A.D. 395, 97 N.Y.S. 700, 1906 N.Y. App. Div. LEXIS 177 (N.Y. Ct. App. 1906).

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Opinion

Jenks, J.:

This is a writ of certiorari to review the proceedings of the State Civil Service Commission, granted on the petition of the sheriff of Kings county, informing the court that the commission had placed the positions of assistant deputy sheriffs, keepers of jail, van drivers and matrons in the classified or competitive class of the State civil service. The commissioners return that they “ deny that they at any time placed the positions involved herein, namely, those of assistant deputy sheriff, keeper of the jail, van driver and matron, in the office' of Sheriff of Kings County in the competitive class.” Section 2134 of the Code of Civil Procedure prescribes that there must be made “ a return, with a transcript annexed, and certified * * of the record or proceedings, and a statement of the [396]*396other matters, specified in and required by the writ.” We cannot look back of such a return into the petition and the accompanying papers. (People ex rel. Miller v. Wurster, 149 N. Y. 549.) The learned and able Attorney-General says that the. return was made by his predecessor, and in effect (as it seems as matter of fact that the positions are in the competitive, class) he must conjecture that the return is based upon one of two technical points, though he ventures no further. We are urged by him to accept his concession that in effect,the return is not in accord with the facts. Although his spirit of concession is entirely commendable, yet I think the court should not proceed when it must do so upon the concession that the return is not true in that it is not consistent with matters of fact. I think under the circumstances we should order'a further return under the authority of section 2135s of the Code of Civil Procedure as Construed in People ex rel. Press Pub. Co. v. Martin (142 N. Y. 228), and People ex rel. Miller v. Wurster (supra).

' Hirsohberg, P. J., Hooker and Miller, JJ., concurred.

Further return ordered under authority of section 2135 of the Code of Civil Procedure. <

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Jenks, J.:

This is a writ of certiorari to review the proceedings of the State Civil Service Commission, granted on the petition of the sheriff of Kings county, informing the court that the commission had placed the positions of assistant deputy sheriffs, keepers of jail, van drivers and matrons in the classified or competitive class of the State civil service. The commissioners return that they “ deny that they at any time placed the positions involved herein, namely, those of assistant deputy sheriff, keeper of the jail, van driver and matron, in the office' of Sheriff of Kings County in the competitive class.” Section 2134 of the Code of Civil Procedure prescribes that there must be made “ a return, with a transcript annexed, and certified * * of the record or proceedings, and a statement of the [396]*396other matters, specified in and required by the writ.” We cannot look back of such a return into the petition and the accompanying papers. (People ex rel. Miller v. Wurster, 149 N. Y. 549.) The learned and able Attorney-General says that the. return was made by his predecessor, and in effect (as it seems as matter of fact that the positions are in the competitive, class) he must conjecture that the return is based upon one of two technical points, though he ventures no further. We are urged by him to accept his concession that in effect,the return is not in accord with the facts. Although his spirit of concession is entirely commendable, yet I think the court should not proceed when it must do so upon the concession that the return is not true in that it is not consistent with matters of fact. I think under the circumstances we should order'a further return under the authority of section 2135s of the Code of Civil Procedure as Construed in People ex rel. Press Pub. Co. v. Martin (142 N. Y. 228), and People ex rel. Miller v. Wurster (supra).

' Hirsohberg, P. J., Hooker and Miller, JJ., concurred.

Further return ordered under authority of section 2135 of the Code of Civil Procedure. <

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Bluebook (online)

111 A.D. 395, 97 N.Y.S. 700, 1906 N.Y. App. Div. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-melody-v-pound-nyappdiv-1906.

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