11 N.Y.S. 505 | N.Y. Sup. Ct. | 1890
The course of proceeding to be taken and followed in applications for, and proceedings upon, writs of certiorari, are now regulated and governed by the statute. And while the officers or boards to which the writ shall be directed are required to return no more than a full account of the proceedings to be reviewed by means of the writ, no authority has been given for striking out any part of the return because it may be irrelevant. The officers and boards to which the writ is frequently directed are not so accustomed to preside over legal proceedings, as to insure a strict observance of the directions and province of the writ in making their return. They are liable to transcend, as well as to fall short of, the directions in making their return. And when they have returned matters not relevant to the review of their proceedings, it has not been the practice to strike them out, but to disregard such matters in the hearing of the return. The court is more competent to do that than the persons usually are, who are required to make the return. The statutory provisions contain no authority for correcting the return on motion by striking from it irrelevant statements; but the practice has been to permit them to remain in the return, and to review the decision made upon wrhat took place upon and in connection with the hearing and decision. That, too, is the safer course to be followed, for if the court on motion were permitted to strike out portions of the return, it might be induced to extend its corrective authority, to the exclusion of what might be very essential to a correct determination of the case. There is, at least, danger that the practice might result in injury to the relator’s case, while there can be none in the exercise by the court of review of its unquestioned authority to consider only what may legally be pertinent to the case itself. As to omissions by which a full and complete return of the proceeding has not been made, there the case is clearly different. For the relator is then deprived of the right secured to him of a complete review of the proceeding against him. To avoid that the power has been provided for the court to order a further return. Code Civil Proc. § 2135. And it previously existed as fully as it has been here provided. To entitle him to a further return, the relator has sworn that the return is defective in the respects ordered to be supplied. It is not entirely clear that he is right, but to avoid the possibility of injustice, a fuller statement from the board of the requests made by and on behalf of the relator, and the disposition made of them, are proper, for upon them and the disposition made of them, his case may very considerably depend. The part of the order requiring the further return as to these matters was proper, and it should be maintained. The order should accordingly be modified by reversing that part of it which directs any portion of the return to be stricken out, and denying