Opinion
October, 1895.
Amasa Thornton, for relator.
Julius M. Meyer, for Board of Excise.
The first question to be determined is, what papers may be considered upon this hearing? At common law only the return to the writ was before the court upon review. Matter of Eightieth Street, 16 Abb. Pr. 169; People ex rel. Sims v. Fire Commissioner, 73 N.Y. 457; People ex rel. Peck v. Commissioners, etc., 106 id. 64; 8 N.Y. St. Repr. 634. The Code of Civil Procedure (§ 2138) has, however, changed the former practice by requiring that the hearing must be upon the "writ and return, and the papers upon which the writ was granted." Now, therefore, the writ and the papers upon which it was granted must also be looked to ( People ex rel. Peck v. Commissioners, etc., supra; People ex rel. Hill v. Board of Supervisors, 18 N.Y.S.t. Repr. 898; People ex rel. McCarthy v. French, 25 Hun, 111; 10 Abb. N.C. 418), and for the purpose of showing facts "essential to the jurisdiction of the body or officer to make the determination to be reviewed," "affidavits or other written proof" may be received. Code Civ. Proc. § 2139; People ex rel. Wright v. Superintendent, etc., 9 N.Y. St. Repr. 607; Buckley v. Drake, 9 Civ. Proc. Rep. 336. Consistently with the practice just enunciated, I am confined upon this proceeding to a consideration of the writ and the affidavit upon which it was issued, and to the return of the writ. Various additional affidavits which have been submitted cannot be regarded. The license was refused, as appears from the written decision of the commissioners which is included in the return, "for the reason that the place for which a license is sought is on the same street with, and having its nearest entrance within 200 feet of the nearest entrance to, a building occupied exclusively as a church, and that said premises were not licensed prior to the enactment of chapter 401 of the Laws of 1892, or chapter 480 of the Laws of 1893." If there is no competent proof of a fact necessary to be proved the proceeding must upon certiorari be reversed. People ex rel. Wright v. Superintendent, supra. The only evidence I can find, in the papers I am permitted to consider as before me, of the fact that the building in question was occupied exclusively as a church, is in the report made to the excise board and signed by D. Hoyle, general inspector, that "the building was a residence, but the two first floors have been thrown together and changed into a church. Over the church is the residence of the pastor and of the janitor, all in the same building." Here is no statement that the portion of the building which has been changed into a church was used exclusively as such, nor that the portions occupied by the pastor and janitor are used exclusively for purposes of residence, nor that there are not other portions of the building devoted to still other uses. Neither the writ nor the petition upon which it was issued supplies these defects. It may be unnecessary to remark, after what precedes, that I think a church edifice may, within the intent of the statute above referred to, be deemed "a building occupied exclusively as a church," although a pastor, or janitor, or other necessary or customary officer resides therein. The determination under review must, therefore, be annulled, but I deem it best to remit the matter to the board of excise for its further consideration and action, as was done by this court in People ex rel. Deutsch v. Dalton, 9 Misc. 249; 60 N.Y. St. Repr. 648. The relator may have fifty dollars costs and his disbursements.
Determination of board of excise reversed, and matter remitted for further consideration, with fifty dollars costs and disbursements.