[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 551
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 552 There does not appear to be any legal ground upon which the reversal by the General Term of the commissioner's action, in dismissing the relator, can rest, when the return of the respondent to the writ is considered, and it is evident that the court, in determining as it did, was influenced by a consideration of the facts set forth in the relator's *Page 554 petition. When we refer to the opinion delivered at the General Term, we find that such is the fact and that the General Term justices deemed, because the return of the respondent was silent as to the allegations of the relator's petition, that those allegations must be considered and taken as a correct and truthful statement of the facts. The opinion states that the facts constituting the cause of the relator's involuntary absences were fully set forth in the petition and, influenced by that view of the case before them, the learned justices deemed that the conviction of the relator was illegal and unjust. I think that there has been quite a misapprehension, on the part of the General Term justices, as to the nature and scope of the hearing which is to be had upon the writ and the return thereto. Section 2138 of the Code of Civil Procedure provides that the cause "must be heard upon the writ and return, and the papers upon which the writ was granted." That, however, does not mean anything else than a specification of what the General Term must have before it at the time of the hearing and upon which it must base its decision. It does not mean that the court is at liberty to look beyond the return and to consider the facts stated in the petition and accompanying papers; unless the return made by the respondent should be an admission of those facts, or the equivalent of an admission. The object of the writ of certiorari is that the court shall have certified and returned to it the proceedings of the body, or officer, to whom the writ is directed, in order that it may consider the same and their regularity and legality and thus be enabled to determine as to whether the complaint made by the relator, in respect thereto, is borne out. If the return is defective, provision is made by section 2135 of the Code that a further return may be directed by the court and the relator would be at liberty, if the return was evasive, or not sufficiently full, to move the court to compel a further return. (People ex rel. Press Pub. Co. v. Martin,142 N.Y. 228.) In the case of People ex rel. Peck v.Commissioners, etc. (106 N.Y. 64), to which the relator's counsel refers, the petition of the relator set forth that his removal had *Page 555 been irregular and illegal, and the return made by the commissioners to the writ of certiorari issuing upon the petition showed a resolution which dismissed the relator. It was, therefore, very properly held in that case, as the return was a plain admission of a summary dismissal, without trial or hearing, that the facts in the moving papers became important and should be considered. In this case, however, when the cause came on for hearing, upon the return to the writ of certi rari, the court had before it a return by the commissioner, which was certified to be "a true copy of all the proceedings had before him concerning the dismissal of the relator." As in that return it nowhere appeared that any evidence was offered by the relator upon his trial, to excuse himself for having been absent without leave upon the several occasions specified; and it did appear that he pleaded guilty to each charge, the return was in effect a denial of the allegations of the relator's petition. There was no apparent defect in the return. It was certified to contain all that had taken place at the trial and the court below was not at liberty to consider anything else than the return. The relator might have moved the court to direct the commissioner to make a further return, if he believed that any testimony had been suppressed, which would have related to the allegations of his writ; but he did not elect to take that course and, in all probability, in view of the explicit certificate by the commissioner, it would have been unavailing. If the return is false, the relator has his remedy by action against the commissioner as for a false return; but, as the case is presented, the court below was bound, and we are bound here, to take the return as true. (People ex rel.Press Pub. Co. v. Martin, supra; Beardslee v. Dolge,143 N.Y. 160.)
It follows from the views I have expressed, that the order of the General Term should be reversed and that the proceedings and determination of the commissioner should be affirmed, with costs.
All concur.
Order reversed. *Page 556