$2130-2133 CERTIORARI. 147 other than a court, if an action would lie against the board or body, in its associate or official name, it must be directed o 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, or by a separate order, that the execution of the determination be stayed, pending the certiorari, and until the further direction of the court. 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 hundred and thirty-seven of this act. A 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 tounty, where the writ is made returnable by the amend nent. 2133. After a writ of certiorari has been issued, the ime to make a return thereto may be enlarged, or any ther order may be made, or proceeding taken, in the 10 Abb. N. C. 33. 19 Week. Dig. 208. 48 Hun, 602. 24 N. Y. State Rep 752. 142 N. Y. 228. 80 Hun, 487. 32 Hun, 299. 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. § 2137. [Am'd 1895, amendment to take effect January 1, 1896.] Upon the application of a person, specially and bene ficially interested in upholding the determinati n to be reviewed, the court may, in its discretion, admit him as 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, di. rect 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. [Am'd 1895, amendment to take effect January 10 Abb. N.C. 1, 1896.] The cause must be heard at a term of the appellate division of the supreme court, held within the judicial de164.partment, embracing the county where the writ was returnable. Either party may notice it for hearing, at any time 149 N.Y. 549 after the return is complete. Except as prescribed in the next section, it must be heard upon the wiit and return, and the papers upon which the writ was granted. 871 25N.Y.Supp. 874. § 2139. If the officer or other person, whose duty it is to make a return, dies, absconds, removes from the State, or be comes insane, after the writ is issued, and before making a re turn, 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 Pourt may, in its discretion, permit affidavits, or other writn 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: 13 Week Dig. 207; 29 Hun, 125; 92 N. Y. 306; 6 Civ. Pro. 297: 98 N. Y 332, 44 Hun 293; 45 Id. 54; 47 Id. 450, 110 N. Y. 494; 15 N. Y. State Rep. 108; 119 N. Y. 502; 137 Id. 12; 25 N. Y. Supp. 874; 5 App. Div. 523. 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 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. The court, upon the hearing, may make a final 100 N. Y. 82. 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. 18 Abb. N. C'. 246. 132 N.Y. 363. § 2143. Costs, not exceeding fifty dollars and disburse 69 N.Y.Supp. ments, may be awarded by the final order, in favor of or 207. 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 der; and a certified copy of each order, which in any |