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contain any statement of the facts or legal objections, upon which the relator founds his claim to relief.
§ 2095. Alternative writ when returnable; how served. The writ must be made returnable, either forthwith or at a day certain, before the term which granted it, or upon the first day of a future term therein specified, at which application for the writ might have been made. Where it is granted at a term of the appellate division in a judicial department, adjoining that wherein the matter originated, it may, in the discretion of the court, be made returnable at a term of the appellate division of either department. The writ must be served on the court or judge, and also upon the party, as prescribed by law for the service of an alternative writ of mandamus. А сору of the papers, upon which it was granted, must be delivered with each copy of the writ. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.]
§ 2096. Absolute writ issues unless return made. Where the alternative writ has been duly served upon the court or judge, and upon the party, the relator is entitled to an absolute writ, unless a return is made by the court or judge, and by the party, according to the exigency of the alternative writ, or within such further time as may be granted for the purpose. The return must be annexed to a copy of the writ; and it must be either delivered in open court or filed in the office of the clerk of the county where the writ is returnable. Where the party makes a return, the court or judge must also make a return. In default thereof, the judge or the members of the court may be punished, upon the application of the people or of the relator, for a contempt of the court issuing the writ. A return to an alternative writ of prohibition cannot be compelled in any other case. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.]
§ 2097. Legal objections, how taken; motion to quash or set aside writ. An alternative writ of prohibition cannot be quashed or set aside, upon motion, for any matter involving the merits. An objection to the legal sufficiency of the papers, upon which the writ was granted, may be taken in the return. A motion to quash an absolute writ of prohibition, or to set aside an alternative writ, for any matter not involving the merits, must be made at a term where the writ might have been granted.
§ 2098. Return by party; proceedings when he adopts judge's return. A return to an alternative writ, when made by a party, must be verified by his affidavit, as required for the verification of a pleading in a court of record; unless it consists only of objections to the legal sufficiency of the papers upon which the writ was granted. Where the party unites with the court or judge in a return, or annexes, to the court's or the judge's return, an instrument in writing, subscribed by him, to the effect that he adopts it, and relies upon the matters therein contained, as sufficient cause why the court or judge should not be restrained, as mentioned in the writ, he is thenceforth deemed the sole defendant in the special proceeding; except that where a final order is made, awarding an absolute writ of prohibition, such a writ must be directed to the party, and also to the court or the judge.
§ 2099. Proceeding after return; trial by jury. Pleadings are not allowed upon a writ of prohibition. Where an alternative writ has been issued the cause may be disposed of without further notice, at the term at which the writ is returnable. If it is not then disposed of, it may be brought to a hearing, upon notice, at a subsequent term. It must be heard at a term of the appellate division in the same judicial department, or at a special term held in the same judicial district, as the case may be. The relator may controvert, by affidavit, any allegation of new matter contained in the return.
court may direct the trial of any question of fact by a jury, in like manner and with like effect, as where an order is made for the trial, by a jury, of issues of fact, joined in an action triable by the court. Where such a direction is given, the proceedings must be the same, as upon the trial of issues so joined in an action. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.]
§ 2100. Final order; costs. Where a final order is made in favor of the relator, it must award an absolute writ of prohibition; and it may also direct that all proceedings or any specified proceeding, theretofore taken in the action, special proceeding, or matter, as to which the prohibition absolute issues, be vacated and annulled. The writ of consultation is abolished. Where a final order is made against the relator, it must authorize the court or judge, and the adverse party, to proceed in the action, special proceeding, or matter, as if the alternative writ had not been issued. Costs, not exceeding fifty dollars and disbursements, may be awarded to either party, as upon
§ 2101. Appeals. A final order, made as prescribed in the last section, can be reviewed only by appeal. Where the order was made by the appellate division, the execution of the order appealed from shall not be stayed, except by an order made at a term of the appellate division in the same department, upon such terms, as to security or otherwise, as justice requires. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]
§ 2102. Stay of proceedings; enlargement of time. The proceedings upon a writ of prohibition, granted at a special term, may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by the judge of the court, but not by any other officer. Where the writ was granted at a term of the appellate division, an order staying the proceedings, or enlarging the time to make a return, can be made only by a justice of the appellate division of the judicial department within which the writ is returnable; and where notice has been given of an application for a prohibition at a term of the appellate division, or an order has been made to show cause at such term, why a prohibition should not issue, a stay of proceedings shall not be granted before the hearing, by any court or judge. [AM'D BY CH. 946 or 1895. In effect Jan. 1, 1896.]
THE WRIT OF ASSESSMENT OF DAMAGES.
SECTION 2103. Writ defined.
2104. Application therefor.
2105. When made by Attorney-General or district attorney.
§ 2103. Writ defined. The writ, heretofore known as the writ of ad quod damnum, shall hereafter be styled the writ of assessment of damages.
§ 2104. Application therefor. Whenever the Governor of the State is authorized by law, to take possession of any real property within the State, for the use of the people of the State, and he cannot agree with the owner or owners thereof for its purchase, he may cause application to be made to the supreme court, at a special term thereof, for a writ of assessment of damages, which must be granted accordingly.
§ 2105. When made by Attorney-General or district attorney. The Attorney-General or the district attorney of the county in which the real property is situated, must, when the Governor so directs, make the application, in the name of the Governor; and must conduct the subsequent proceedings, under the Governor's direction.
§ 2106. Writ; to whom directed. The writ must be directed to the sheriff of the county in which the real property to be taken is situated, unless the court directs the damages for the taking to be assessed by a jury of another county; in which case, the writ must be issued to the sheriff of the county, from which the jury is directed to be taken.
§ 2107. Contents of writ. The writ must describe the real property to be taken, with the like certainty as is required in a complaint in an action of ejectment. It must command the sheriff, to whom it is directed, to inquire, by the oaths of twelve men of his county, qualified to act as trial jurors in a court of record, whether the owner or owners of the real property, or any of them, will sustain any damages by the taking thereof, for the use of the people of the State; and, if so, the amount thereof; and that he return the writ to the supreme court, without delay, with the finding of the jury thereupon.
$ 2108. Notice of execution. The sheriff, immediately after the delivery of the writ to him, must give notice of the time when, and the place where, the writ will be executed, by publishing the notice, once in each week, for at least three successive weeks, in a newspaper printed in his county.
§ 2109. Jury; how procured. The sheriff must notify twelve men of his county, qualified to act as trial jurors in a court of record, to attend at the time and place, and for the purpose specified in the notice. Each juror must be notified, as a juror is notified to attend a trial term of the supreme court. Upon his failure to attend, when duly notified, his attendance may be compelled by attachment, and proceedings may be taken against him, and he may be punished thereupon, by the supreme court, as where a juror, duly notified, fails to attend at a trial term thereof. The sheriff may require the attendance of a talesman, in place of a juror notified and not appearing; or he may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]
§ 2110. Juror to be sworn. When a jury has been procured, the sheriff must, before the jurors proceed to the inquiry commanded by the writ, administer to each of them an oath, that he will diligently inquire concerning the matters specified in the writ, and will give a true verdict, according to the best of his judgment, without favor or partiality.
§ 2111. Jury to make inquisition. After being sworn as prescribed in the last section, the jury must view all the real property described in the writ, and consider the value thereof. They may, in the discretion of a majority of them, hear such testimony as may be offered by any person appearing, respecting the value. They must thereupon assess the damages, which the owner or owners of the real property will sustain, by being
deprived thereof. When the real property consists of two or more distinct parcels, owned, or claimed to be owned, by different persons, the jury must assess separately the value of each distinct parcel, if the writ requires them so to do, or if a majority of them think proper so to do. If they cannot agree, after a reasonable time, the sheriff may discharge them, and publish a new notice, and procure a new jury. When the jurors have agreed, they must make an inquisition, stating the sum to be paid, by the people of the State, for taking each distinct parcel, or the whole, as the case requires. The inquisition must be signed by each juror, and by the sheriff; and the sheriff must immediately thereafter file the inquisition and the writ, with his return to the writ, in the office of the clerk of the county in which the real property is situated.
§ 2112. Notice of application to court thereupon. Within three months after the writ, and the return thereto, with the inquisition thereupon, have been filed, as prescribed in the last section, the Attorney-General, or district-attorney, having charge of the proceedings, must cause to be published, a notice, directed, generally, to all owners and persons interested in the real property; describing the property, in general and concise terms; stating when and where the writ, return, and inquisition were filed; and requiring the persons notified to show cause, at a special term of the supreme court, to be held at a time and at a place specified in the notice, why the inquisition should not be confirmed; or, if the Governor so directs, why the inquisition should not be set aside. The notice must be published, at least once in each week, for three successive weeks, in a newspaper printed in the county, and also in the newspaper printed at Albany, in which legal notices are required to be published.
§ 2113. Court may set aside inquisition. At the time and place specified in the notice, the court must examine into the inquisition, and hear such allegations and affidavits, or other written proofs, as may be presented in behalf of the people, or any owner, or person interested. If the court then, or at the time and place to which the matter is adjourned, determines that the inquisition is, in any respect, excessive, unjust, or otherwise materially defective, it may set aside the whole or any part thereof; and may direct that another writ issue, or another inquisition be taken, to supply the defects.
§ 2114. Order on confirming inquisition. If it appears to the court, that the writ has been duly executed, an order must be made, and entered in the office of the clerk of the county, in which the real property to be taken is situated, declaring that the people of the State, upon paying into court the amount of the damages assessed by the inquisition, shall be entitled to an absolute estate in the real property described in the writ, and in the appurtenances belonging thereto.
§ 2115. State Treasurer to pay damages, etc., to Governor. The State Treasurer, on the warrant of the Comptroller, must pay to the Governor, out of any money in the treasury, appropriated for that purpose, sufficient money to pay the damages assessed, pursuant to the foregoing provisions of this article, and the costs and expenses of the proceedings.
§ 2116. Governor to pay damages into court. Immediately after the receipt by the Governor, as prescribed in the last section, of sufficient money to pay the damages, he must pay it into court; and thereupon the absolute title to the real property so to be taken, vests in the people of the State.
§ 2117. Investment of money so paid. If an application for the money paid into court is not made, as prescribed in the next section, within sixty
days after the payment into court, the appellate division of the supreme court in that judicial department, may provide, by order, for the investment, under the direction of the court, of the money, and of the interest to arise therefrom, in permanent securities, for the benefit of the owners. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]
§ 2118. How obtained by claimant. A person claiming to have been an owner of, or interested in, the property, when it was so taken, may present to the appellate division of the supreme court, at a term thereof, held in the judicial department embracing the county wherein the property is situated, à petition praying for the payment to him of the whole or any part of the money so paid into court, or of the income remaining uninvested, or both; or for the transfer to him of the whole or any part of the securities in which it has been invested. The court must thereupon take such measures as it deems proper to ascertain the rights and interests of the petitioner, and of all other persons who were owners of or interested in the property, or who are personal representatives, or heirs, or owners or persons so interested, and to cause notice of the application to be given to those persons; and it must cause the money to be paid, or the securities to be transferred, to the several persons entitled thereto, in accordance with the rights and interests thus ascertained. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]
§ 2119. Taking lands by United States. When the Legislature of the State consents to the taking of any real property within the State, for the use of the people of the United States, a writ of assessment of damages may be issued; and the proceedings thereupon must be in accordance with the provisions of this article; except that the application for the writ must be made, and the subsequent proceedings must be conducted, by the Attorney of the United States for the district embracing the county wherein the real property is situated.
THE WRIT OF CERTIOKARI, TO REVIEW THE DETERMINATION OF AN INFERIOR TRIBUNAL.
SECTION 2120. Cases where writ may issue.
2121. Cases where it cannot issue.
2122. The same.
2123. When issued from supreme court or superior city court.
2124. When from another court.
2125. Limitation of time for review.
2126. Id.; in case of disability.
2127. Application for writ; where and how made.
2128. When notice necessary; service thereof.
2129. To whom writ directed.
2130. Mode of service.
2131. Stay of proceedings.
2132. When and where writ returnable.
2133. Subsequent proceedings as in an action.
2134. Return; when and how made.
2135. Id.; how compelled; fees for making
2136. Id.; after term of office expired.
2137. When third person may be brought in.
-2139. Id.; upon affidavits
2140. Questions to be determined.
2141. Final order upon the hearing.
2142 Restitution may be awarded.
2146. "Body of officer;" "determination;" what they include.
2147. Application of this article to certain special cases.
2148. Id.; to civil cases only.