Opinion
Argued November 9, 1903
Decided November 24, 1903
Charles Diebold, Jr., for appellants.
Levant D. Lester for respondent.
In reversing the action of the town board disallowing the relator's claim for services rendered prior to May 9th, 1902, the learned Appellate Division evidently failed to give effect to the rule that the denials and allegations of a return to a writ of certiorari must be taken as true, so far as they put in issue the material allegations of the petition for the writ. This is clearly shown by the statement in the opinion that "while the return of a majority of the town board to the relator's petition in form denies many of the allegations thereof, we are impressed with the idea that such denial is merely formal and designed mainly for the purpose of raising an issue."
The Code of Civil Procedure (§ 2138) provides that proceedings upon certiorari "must be heard upon the writ and return and the papers upon which the writ was granted," and this court has held that this "does not mean that the court is at liberty to look beyond the return and consider the facts stated in the petition and accompanying papers, unless the return is an admission of those facts, or the equivalent of an admission." ( People ex rel. Miller v. Wurster, 149 N.Y. 549.) The return must be taken as conclusive and acted on as true. If false in fact the remedy is in an action for false return; if insufficient in form by compelling a further and more specific return. ( People ex rel. Sims v. Bd. Fire Commrs., 73 N.Y. 437.) From this brief statement of the law relating to certiorari proceedings, it is apparent that if the denials of the return put in issue the material allegations of the papers upon which the writ was granted, the court below had no power to look beyond the return for the supposed equities of the case.
The foregoing recital of the proceedings herein discloses that the only matter in issue is the employment of the relator by the town of Hamburg to render services in the case of smallpox patients in that town during the period between the 29th of April and the 9th of May, 1902. The return made by a majority of the town board specifically denies such employment, and distinctly traverses every allegation of the relator's petition in that behalf. This was conclusive upon the Appellate Division and the writ should have been dismissed.
Upon the argument before us counsel for the relator contended that as the return of the town board was made by only a majority of its members and not by all of them, the Appellate Division had the right to consider the separate return of Salisbury, one of the members of the town board, which tended to corroborate the allegations of the relator's petition. We think this contention is not well founded. There can be only one return to a writ of certiorari, unless a second return is directed or permitted by the court because the first one was defective or insufficient in form. If the original return is false in fact the remedy, as we have seen, is an action for a false return. When a writ of certiorari is issued to review the determination of a board or body composed of two or more persons, the return to the writ is to be made in the name of the board or body, and may be executed by a majority of the members thereof. ( People ex rel. Gambling v. Cholwell, 6 Abb. Pr. 151; Plymouth v. County Commrs., 16 Gray, 341; People ex rel. Toohey v. Webb, 50 N Y St. Rep. 46.) The provisions of section 2134 (Code Civ. Pro.), directing that "each person upon whom a writ of certiorari is served * * * must make a return," etc., is not in conflict with the view that the return of a body or board may be made by a majority of its members, because the noun "person" is clearly used to denote any person or legal entity to whom a writ is directed. The return of the majority of the members of the town board was, therefore, the only return which the court below had the right to consider, and the separate return made by Salisbury, one of its members, should have been disregarded.
For these reasons the order of the Appellate Division must be reversed and the writ herein dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and CULLEN, JJ., concur.
Order reversed, etc.