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. See § 2138, post. § 2133. Subsequent proceedings as in an action. 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. Return; when and how made. 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 2130 of this act, must make and annex to the writ, or to the copy thereof served upon him, a return, with a transcript annexed, and certified by him, of the record or proceedings, and a statement of the other matter, 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. 2 R. S. 599, §§ 45 and 46 (2 Edm. 621). § 2135. Id.; how compelled; fees for making. 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. See 2 R. S. 576, § 83 (2 Edm. 596), and § 2005, ante. § 2136. Id.; after term of office expired. 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. § 2137. [Am'd, 1895.] When third person may be brought in. Upon the application of a person, specially and beneficially interested in upholding the determination to be reviewed, the court may, in its discretion, admit him as a party defendant in the special proceedings, upon such terms as justice requires. And a term of the appellate division of the supreme 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 ac cordingly. L. 1895, ch. 946. § 2138. [Am'd, 1895.] Hearing upon return. The cause must be heard at a term of the appellate division of the supreme court, 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. L. 1895, ch. 946. § 2139. Id.; upon affidavits. If the officer or other person, whose duty it is to make a return, dies, 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. 2 R. S. 271, § 261 (2 Edm. 280); Co. Proc., § 363. § 2140. Questions to be determined. 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 subjectmatter 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 relator, 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. Final order upon the hearing. 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. L. 1868, ch. 828, § 5. § 2142. Restitution may be awarded. Where the determination reviewed is annulied 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. See § 1292, ante. § 2143. Costs. 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, See §§ 2086 and 2100, ante; also, § 2007, ante. § 2144. Entry and enrollment of final order. 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. See 88 1237, 1345, and 1354, ante. § 2145. Effect thereof. 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. See § 1345, ante. § 2146. "Body or officer"; "determination"; what they include. 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 reviewed. § 2147. Application of this article to certain special cases. 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. Id.; to civil cases only. 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. CHAPTER XVII. Certain Special Proceedings Instituted Without Writ. TITLE I. Proceedings Relating to Insolvent Debtors and to Prisoners. 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 V.- Proceedings to Discover the Death of a Tenant for Life. TITLE VI.- Proceedings for the Appointment of a Committee of the Person and of the Property of a Lunatic, Idlot, or a Habitual Drunkard; General Powers and Duties of the Committee. TITLE VII.- Proceedings for the Disposition of the Real Property of an Infant, Lunatic, Idiot, or Habitual Drunkard. TITLE VIII.- Arbitrations. TITLE IX.- Proceedings to Foreclose a Mortgage by Advertisement. TITLE XI.- Proceedings for the Voluntary Dissolution of a Corporation. TITLE I. Proceedings relating to insolvent debtors and to prisoners. Artlele 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. ARTICLE FIRST. Discharge of an insolvent from his debts. Sec. 2149. Who may be discharged. 2150. To what court application to be made. 2151. Contents of petition. 2152. Consent of creditors to be annexed. 2153. Consent of executor, administrator, receiver, etc. 2154. Id.: of corporation, etc. 2155. Id.; of partnership. 2156. Effect of consent where petitioner is a joint debtor. 2157. Consent of purchaser of debt, etc. 2158. Consenting editor must relinquish security. 2159. Penalty if creditor swears falsely. 2160. Affidavit of consenting creditor. 2161. When non-resident creditor to annex account, etc. 2162. Petitioner's schedule. 2163. His affidavit. 2164. Order to show cause. 2165. How order published and served. 2166. Hearing. 2167. Putting cause on calendar. 2168. Opposing creditor to file specifications. and may demand jury trial. Sec. 2169. Id.; to file proofs, if not named in schedule. 2170. Proceedings if jurors do not agree. 2171. When insolvent required to produce his non-resident wife. 2172. Examination of an insolvent. 2173. When insolvent cannot be discharged 2174. When assignment to be directed. 2175. Assignment; contents, and to whom made. 2176. Id.; trustees, how designated. 2177. Effect of assignment. 2178. When discharge to be granted. 2179, 2180. Proceedings where trustee refuses to give certificate, etc. 2181. Discharge, etc., to be recorded. 2182. Effect of discharge. 2183. Id.; exception as to foreign contracts or creditors. 2184. Id.; as to debts, etc., to the United States and the State. 2185. Insolvent to be released from imprisonment. 2186. Discharge; when void. 2187. Invalidity may be proved on motion to vacate order of arrest, etc. § 2149. Who may be discharged. An insolvent debtor, who is a resident of the State at the time of presenting his petition, may be discharged from his debts, as prescribed in this article. 2 R. S. 16, § 1 (2 Edm. 17), am'd. § 2150. [Am'd, 1895.] To what court application to be made. Application for such a discharge must be made, by the petition of the insolvent, addressed to the county court of the county in which he resides; or, if he resides in the city of New York, to the supreme court. See 3 R. S., 5th ed., 109, §§ 1 and 2 (2 Edm. 35); L. 1895, ch. 946. § 2151. Contents of petition. The petition must be in writing; it must be signed by the insolvent, and specify his residence; it must set forth, in substance, that he is unable to pay all his debts in full; that he is willing to assign his property for the benefit of all his creditors, and, in all other respects, to comply with the provisions of this article, for the purpose of being discharged from his debts; and it must pray that, upon his so doing, he may be discharged accordingly. It must be verified by the affidavit of the insolvent, annexed thereto, taken on the day of the presentation thereof, to the effect, that the petition is in all respects true, in matter of fact. § 2152. Consent of creditors to be annexed, The petitioner must annex to his petition one or more written instruments, executed by one or more of his creditors, residing in the United States, having debts owing to him or them in good faith, then due or thereafter to become due, which amount to not less than two-thirds of all the debts, owing by the petitioner to creditors residing within the United States. Each instrument must be to the effect, that the person or corporation, executing it, consents to the discharge of the petitioner from his debts, upon his complying with the provisions of this article. 2 R. S. 36, § 2 (2 Edm. 37). § 2153. Consent of executor, administrator, receiver, etc. An executor or administrator may become a consenting creditor, under the order of the surrogate's court from which his letters issued. A trustee, official assignee, or receiver of the property of a creditor of the petitioner, whether created by operation of law |