People ex rel. Van Allen v. Perry , 23 N.Y. Sup. Ct. 461 ( 1879 )

Smith, J. :

The statute which appears to have been mainly relied on by the Special Term provides, that “ no certiorari shall be allowed to remove into the Supreme Cosrt any matter which may be brought before the county court by appeal from a justice until after a final determination thereon by such court.” The Special Term held, in effect, that as the case was one in which an appeal might have been taken tot the county court, though none was taken, a certiorari could not be allowed. We think the meaning of the statute is that in a case where an appeal lies to the county court, if such appeal shall have been taken in fact, no certiorari shall be allowed until a final determination by the county court. If the construction of the Special Term is correct, a certiorari cannot be directed to the justice to review summary proceedings in any case, and the only remedy, in the first instance, is by appeal to the county court. But the cases are numerous in which the writ has been directed to the justice. (The People ex rel. Daniels v. Cushman, 1 Hun, 73 ; The People ex rel. Grissler v. Stuyvesant, id., 102; S. C. affirmed, 58 N. Y., 323; The People ex rel. Murphy v. Lockwood, 3 Hun, 304; The People ex rel. Hughes v. Lamb, 10 id., 348.) And it has been held that the remedies are concurrent, and a party may resort to either at his option. (Williams v. Bigelow, 11 How., 87.) We do not think the statute referred to stood in the way of granting the writ.

Neither do we think there was such laches as would warrant the quashing of the writ on that ground. The writ was applied for about seventeen months after the judgment was rendered. The time of limitation to writs of certiorari which, in the absence of special circumstances, has been usually adopted by this court, is two years, in analogy to the limitation fixed by statute upon writs of error before those writs were abolished. (People ex rel. Ackerly v. Brooklyn, 8 Hun, 56, and cases there cited by Gilbert, J.; People ex rel. Corwin v. Walter, 4 N. Y. Sup. Ct. [T & C.] R., 640; S. C., 2 Hun, 385.) The Code of Procedure substituted appeals for writs of error, and fixed two years as the limitation for bringing appeals to the Court of Appeals. The Code of Civil Procedure has reduced the time to one year. But it does not necessarily follow that the courts should now adopt one year as the limitation to writs of certiorari in all cases. The granting of the writ is, now as heretofore, in a great measure matter of discretion. In most of the cases in which two years wrore said tó be the limitation, public interests were involved, or private rights had intervened, which Avould be prejudiced by delay. But this case presents neither of these features, and we cannot say that the discretion of the judge who allowed the writ was improperly exercised.

We are not aware of any reported case holding that a copy of the affidavit on which the writ was allowed must be served with the writ on the respondent. In Wait’s Practice (vol. 5, p. 490), it is said the affidavit should be served, but no authority is cited in support of the position. If it is necessary to serve the affidavit on the respondent, it seems equally necessary to serve it upon the officer or tribunal to whom the writ is directed; but there does not seem to be any necessity for serving it on either. The office of the writ is not to compel a return upon certain points pointed out in the affidavit, but to remove the entire proceedings specified in the writ or the record thereof into the court to which the writ is returnable. The judge, to whom an ex parte application for the writ is made, may in his discretion require notice of it to be given to the adverse party ; and if, after the writ is allowed, the respondent deems it to have been inadvertently issued, he may move to quash or supersede it. It may be judicious practice to serve a copy of the affidavit with the writ, but we are not prepared to say that an omission to do so furnishes ground for quashing the writ, when it appears to have been regularly and providently granted in all other respects, and there is no evidence that the respondent has been harmed by the omission.

The respondent’s counsel seems to suppose that notwithstanding rule 44, the writ should have been made returnable at the General Term. He bases his argument upon section 47 of the act authorizing summary proceedings (2 R. S., 516), as amended by chapter 828 of the Laws of 1868. The section, as amended, provides that the Supreme Court may award a certiorari, etc.; that the judgment of the Supreme Court at a General Term shall be final, unless an appeal be allowed to the Court of Appeals; and that the appeal upon any judgment rendered upon any such certiorari may be brought on for argument, etc., at any term of the Court of Appeals, etc. His position is that the section allows only one appeal, and if the writ were made returnable at a Special Term, an appeal would lie from the judgment of the Special Term, directly to the Court of Apjaeals, contrary to the evident intention of the statute. The answer to this is that an appeal to the General Term from an order made by a Special Term in every special proceeding is given by section 1356 of the Code of Civil Procedure.

The respondent’s counsel cites the cases of Saratoga and W. R. R. Co. v. McCoy (5 How., 378); In the Matter of Mount Morris Square, (2 Hill, 27), and The People ex rel. Noble v. The Board of Comrs. (37 Barb., 126), in support of the position, that when a remedy is given by appeal a certiorari should not be granted. Many more cases might be cited to the same effect. They are all cases of a common law certiorari. Here the writ is given by statute, and as we have already seen the remedies are concurrent.

The order of the Special Term quashing the writ should bo reversed with ten dollars costs of appeal and disbursements, and ten dollars costs of opposing the motion at Special Term.

Talcott, P. J., and Hardest, «J., concurred.

So ordered.