§ 2120. The writ of certiorari regulated in this article, except the writ specified in section two thousand one hundred and twenty-four of this act, is issued to review the determination of a body or officer. in one of the following cases only: It can be issued 1. Where the right to the writ is expressly conferred, or the issue thereof is expressly authorized, by a statute. 2. Where the writ may be issued at common law, by a court of general jurisdiction, and the right to the writ, or the power of the court to issue it, is not expressly taken away by a statute. § 2121. A writ of certiorari cannot be issued, to review a determination, made, after this article takes effect, in a civil action or special proceeding, by a court of record, or a judge of a court of record. § 2122. Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, in either of the following cases: 1. To review a determination, which does not finally determine the rights of the parties, with respect to the matter to be reviewed. 2. Where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer. 3. Where the body or officer, making the determination, is expressly authorized, by statute, to relear the matter, upon the relator's application; unless the determination to be reviewed was made upon a rehearing, or the time within which the relator can procure a rehearing has elapsed. § 2123. A writ of certiorari can be issued only out of the supreme court or a superior city court; except in a case where another court is expressly authorized by statute to issue it. $2124. Any court of record, exercising jurisdiction of an appellate nature, may issue a writ of certiorari, requiring the body or officer whose proceedings are under review, to make a return to the court issuing the writ, at a time and place, fixed by the court, and designated in the writ, for the purpose of supplying any diminution, variance, or other defect, in the record or other papers, before the court issuing the writ, in any case where justice requires that the defect should be supplied, and adequate relief cannot be obtained by means of an order. § 2125. Subject to the provisions of the next section, a writ of certiorari to review a determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator, or the person whom he represents, either in law or in fact. § 2126. The court, at a general term thereof, may grant the writ, at any time within twenty months after the expiration of the time limited in the last section, where the relator, or the person whom he represents, was, at the time when the determination to be reviewed became final and binding upon him, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life. § 2127. An application for the writ must be made by, or in behalf of, a person aggrieved by the determination to be reviewed; must be founded upon an affidavit, or a verified petition, which may be accompanied by other written proof; and must show a proper case for the issuing of the writ. It can be granted only at a general or special term of the court; and the granting or refusal thereof is discretionary with the court. 2128. Until provision is made, in the general rules of practice, for requiring, or dispensing with notice of the application for the writ, the court to which the application for the writ is made, nay, in its discretion, require or dispense with notice. A notice, when it is necessary, must be served, with copies of the papers upon which the application is to be made, upon the body or officer, whose determination is to be reviewed, or upon such other person as the court directs, as prescribed in this article for the service of a writ of certiorari. The service must be made, at least eight days before the application, unless the court, by an order to show cause, prescribes a shorter time. Where notice is given, the person served may produce affidavits or other written proofs, upon the merits, in opposition to the application. 2129. The writ must be directed to the body or officer, whose determination is to be reviewed; or to any other person having the custody of the record or other papers to be certified; or to both, if necessary. Where it is brought to review the determination of a board or body, other than a court, if an action would lie against the board or body, in its associate or official name, it must be directed to the board or body, by that name; otherwise it must be directed to the members thereof, by their names. § 2130. A writ of certiorari must be served as follows, except where different directions, respecting the mode of service thereof, are given by the court granting it: 1. Where it is directed to a person or persons by name, or by his or their official title or titles, or to a municipal corporation, it must be served, upon each officer or other person, to whom it is so directed, or upon the corporation, in the same manner as a summons in an action brought in the supreme court, except as prescribed in the next two subdivisions of this section. 2. Where it is directed to a court, or to the judges of a court, having a clerk appointed pursuant to law, service upon the court, or the judges thereof, may be made by filing the writ with the clerk. 3. Where it is to be served upon any other board or body, or upon the members thereof, it may be served as prescribed in section two thousand and seventy-one of this act, for service, upon a like board or body, of an alternative writ of mandamus. § 2131. Except as prescribed in this section, a writ of certiorari does not stay the execution of the determination to be reviewed, or affect the power of the body or officer, to which or to whom it is addressed. The court, which grants the writ, may, in its discretion, and upon such terms, as to security or otherwise, as justice requires, direct, by a clause in the writ, cr by a separate order, that the execution of the determination be stayed, pending the certiorari, and until the further direction of the court. A bond, undertaking, or other security, given to procure such a stay, is valid and effectual, according to its terms, in favor of a person beneficially interested in upholding the determination to be reviewed, who is admitted as a party to the special proceeding, as prescribed in section two thousand one I undred and thirty-seven of this act. § 2132. A writ of certiorari must be made returnable, within twenty days after the service thereof, at the office of the clerk of the court. If it was issued from the supreme court, it must be made returnable at the office of the clerk of the county, designated therein, wherein the determination to be reviewed was made; and if the county, designated in the writ, is not the proper county, the court, upon motion, may amend the writ accordingly. Thereupon all papers on file must be transferred to the clerk of the county, where the writ is made returnable by the amendment. § 2133. After a writ of certiorari has been issued, the time to make a return thereto may be enlarged, or any other order may be made, or proceeding taken, in the cause, in relation to any matter not provided for in this article, as a similar proceeding may be taken in an action, brought in the same court, and triable in the county where the writ is returnable. 2134. The clerk, with whom a writ of certiorari is filed, and each person, upon whom a writ of certiorari is served, as prescribed in section two thousand one hundred and thirty of this act, must make and annex to the writ, or to the copy thereof served upon him, a return, with the transcript annexed, and certified by him, of the record or proceedings, and a statement of the other matters, specified in and required by the writ. The return must be filed in the office where the writ is returnable, according to the command thereof. 2135. If a return is defective, the court may direct a further return. An omission to make a return, as required by a writ of certiorari, or by an order for a further return, may be punished, as a contempt of the court. But a judge or clerk shall not be thus punished, unless the relator, before the time when the return is required, pays him, for his return, the sum of two dollars, and, in addition, ten cents for each folio of the copies of papers required to be returned. § 2136. A writ of certiorari may be issued to, and a return to a writ of certiorari may be made by, an officer, whose term of office has expired. Such an officer may be punished for a failure to make a return to the writ, as required thereby; or to make a further return, as required by an order for that purpose. in § 2137. Upon the application of a person, specially and beneficially interested in upholding the determination to be reviewed, the court may, its discretion, admit him as a party defendant in the special proceeding, upon such terms as justice requires. And a general term of the court, at which the cause is noticed for hearing, and is placed upon the calendar, may, in a proper case, direct that notice of the pendency of the special proceeding be given to any person, in such a manner as it thinks proper; and may suspend the hearing until notice is given accordingly. § 2138. The cause must be heard at a general term of the court. In the supreme court, it must be heard at a general term, held within the judicial department, embracing the county where the writ was returnable. Either party may notice it for hearing, at any time after the return is complete. Except as prescribed in the next section, it must be heard upon the writ and return, and the papers upon which the writ was granted. 2139. If the officer or other person, whose duty it is to make a return, absconds, removes from the State, or becomes insane, after the writ is issued, and before making a return, or after making an insufficient return; and it appears that there is no other officer or person, from whom a sufficient return can be procured by means of a new certiorari; the court may, in its discretion, permit affidavits, or other written proofs, relating to the matters not sufficiently returned, to be produced, and may hear the cause accordingly. The court may also, in its discretion, permit either party to produce affidavits, or other written proofs, relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of the body or officer, to make the determination to be reviewed, where the facts, in relation thereto, are not sufficiently stated in the return, and the court is satisfied that they cannot be made to appear, by means of an order for a further return. 2140. The questions, involving the merits, to be determined by the court upon the hearing, are the following, only: 1. Whether the body or officer had jurisdiction of the subject-matter of the determination under review. 2. Whether the authority, conferred upon the body or officer, in relation to that subject-matter, has been pursued in the mode required by law, in order to authorize it or him to make the determination. 3. Whether, in making the determination, any rule of law, affecting the rights of the parties thereto, has been violated, to the prejudice of the rela tor. 4. Whether there was any competent proof of all the facts, necessary to be proved, in order to authorize the making of the determination. 5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence of any of those facts, that the verdict of a jury, affirming the existence thereof, rendered in an action in the supreme court, triable by a jury, would be set aside by the court, as against the weight of evidence. § 2141. The court, upon the hearing, may make a final order, annulling or confirming, wholly or partly, or modifying, the determination reviewed, as to any or all of the parties. $2142. Where the determination reviewed is annulled or modified, the court may order and enforce restitution, in like manner, with like effect and subject to the same conditions, as where a judgment is reversed upon appeal. 2143. Costs, not exceeding fifty dollars and disbursements, may be awarded by the final order, in favor of or against either party, in the discretion of the court. § 2144. The final order of the court upon the certiorari must be entered in the office of the clerk where the writ was returnable. But before it can be enforced, an enrollment thereof must be filed. For that purpose, the clerk must attach together, and file in his office, the papers upon which the cause was heard; a certified copy of the final order; and a certified copy of each order, which in any way involves the merits, or necessarily affects the final order. § 2145. The filing of the enrollment in the office of the clerk where the final order is entered, as prescribed in the last section, is a sufficient authority for any proceeding, by or before the body which, or the officer who, made the determination reviewed, which the final order of the court directs or permits. But where the execution of the final order is stayed by an appeal to the court of appeals, the proceedings below are stayed in like manner. 2146. The expression, "body or officer," as used in this article, includes every court, tribunal, board, corporation, or other person, or aggregation of persons, whose determination may be reviewed by a writ of certiorari; and the word, "determination," as used in this article, includes every judgment, order, decision, adjudication, or other act of such a body or officer, which is subject to be so r viewed. $2147. Where the right to a writ of certiorari is expressly conferred, or the issuing thereof is expressly authorized, by a statute, passed before, and remaining in force after, this article takes effect, this article does not vary, or affect in any manner, any provision of the former statute, which expressly prescribes a different regulation, with respect to any of the proceedings upon the certiorari to be issued thereunder. § 2148. This article is not applicable to a writ of certiorari, brought to review a determination made in any criminal matter, except a criminal contempt of court. TITLE II. SUMMARY PROCEEDINGS TO RECOVER THE POSSESSION OF REAL PROPERTY. TITLE III. PROCEEDINGS TO PUNISH A CONTEMPT OF COURT, OTHER THAN A CRIMINAL CONTEMPT. TITLE IV. PROCEEDINGS TO COLLECT A FINE. TITLE TITLE V.-PROCEEDINGS TO DISCOVER THE DEATH OF A TENANT FOR LIFE. VI.-PROCEEDINGS FOR THE APPOINTMENT OF A COMMITTEE OF THE TITLE VII-PROCEEDINGS FOR THE DISPOSITION OF THE REAL PROPERTY TITLE VIII. TITLE TITLE IX. PROCEEDINGS TO FORECLOSE A MORTGAGE BY ADVERTISE MENT. X.-PROCEEDINGS TO CHANGE THE NAME OF AN INDIVIDUAL. TITLE XI. PROCEEDINGS FOR THE VOLUNTARY DISSOLUTION OF A COR PORATION. TITLE XII.-PROCEEDINGS SUPPLEMENTARY PROPERTY. ΤΟ AN EXECUTION AGAINST TITLE I. Proceedings relating to insolvent debtors and to prisoners. ARTICLE 1. Discharge of an insolvent from his debts. 2. Exemption from arrest, or discharge from imprisonment, of an insolvent debtor. 3. Discharge of an imprisoned judgment debtor, from imprisonment. 4. Care of the property of a person confined for crime. |