Page images

§ 199. The principal of these writs, four in number, are modified and regulated in this title, in the following order:

1. The writ of review:
2. The writ of mandate:

3. The writ of assessment:

4. The writ of deliverance.

§ 200. The writ of quo warranto, the writ of scire facias, and the writ of prohibition, are abolished.

Ş 201. The allowance of the writ of review, the writ of mandate, and the writ of assessment, rests in the sound discretion of the court. The writ of deliverance, when regularly applied for, cannot be refused.

§ 202. The application for a state writ must be made to the supreme court, at a special term, except as provided in the next section.

§ 203. The writ of deliverance, commonly known as the writ of habeas corpus, may be allowed, not only by the supreme court at a special term, but, out of court by a judge of the supreme court, a judge of the superior court of New-York, a judge of the court of common pleas of the city and county of New York, a county judge, or the special judge of the city of New-York.

$ 204. After the allowance of the writ of deliverance, all the proceedings thereon, to the judgment, inclusive, are had in the supreme court. But the orders and judge ment, respectively, may be entered upon the certificate out of court, of any judge in the last preceding section designated, in the manner hereinafter provided.


The Writ of review.

§ 205. The writ of certiorari, whether at common law or by statute, shall be hereafter known as the writ of review.


[ocr errors]
[ocr errors]

$ 206. The writ of review shall be, substantially, in the following form: SEAL. The people of the State of New York,

To We command you to certify fully to our supreme court, at

and annex to this writ a transcript of the record and proceedings before you, in a certain matter, (describing it,) that the same may be reviewed by our supreme court: and in the meantime you will desist from further proceedings in that matter.

By order of the court, Albany, January 1, 1849, (or as the case may be] A. B., clerk.

§ 207. If a stay of proceedings be not intended, the words, requiring the stay, may be omitted from the writ. These words may be inserted, or omitted, in the sound discretion of the court.

§ 208. The effect of the writ shall be to remove, not the record, but the transcript thereof; therefore, the power of the inferior court or officer is not suspended, nor the proceedings stayed, unless an order to that effect be inserted in the writ.

$ 209. The writ may be granted, wherever the writ of certiorari is now authorized by statute, and also in all cases where an inferior tribunal, board, or officer, exercising judicial functions, is alleged to have exceeded the jurisdiction of such tribunal, board or officer: and where there is no appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy.

$ 210. Except when otherwise provided by statute, the review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer, has regularly pursued the authority of such tribunal, board, or officer.

$ 211. The writ may be directed to such tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified.

212. The motion for the writ must be made upon affidavit, and the court may require a notice of the application to be given to the adverse party, or may grant an order to shew cause why it should not be allowed, or may grant the writ without notice.

§ 213. The allowance of the writ shall be endorsed thereon, signed by the judge granting it, and the writ

shall be served in the same manner, as a summons in a civil action

§ 214. Obedience to the writ may be enforced by attachment.

$ 215. If the return to the writ be defective, the court may order a further return to be made.

$ 216. When a full return has been made, the court shall proceed to hear the parties, or such of them as shall attend for that purpose, and may thereupon give judgment, either affirming or annulling the proceedings below.

$ 217. A copy of the judgment, signed by the clerk, entered upon, or attached to, the writ and return, shall constitute the judgment roll.

$ 218. From such judgment, an appeal may be taken to the general term, and thence to the court of appeals, in the same manner and upon the same terms, as from a judgment in a civil action.


The writ of mandate.

§ 219. The writ, heretofore known as the writ of mandamus, shall be hereafter denominated the writ of mandate

§ 220. Such writ is modified and regulated as in this chapter prescribed.

$ 221. It may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act, which the law specially enjoins, as a duty resulting from an office, trust, or station.

$ 222. Though it may require an inferior court to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.

$ 223. This writ ought not to be issued, in any case where there is a plain, speedy and adequate remedy, in the ordinary course of the law. It is issued, on the information of the party beneficially interested, who shall be known as plaintiff, and the party to whom it is addressed, shall be known as defendant.

§ 224. The writ is either alternative or peremptory.

$ 225. The alternative writ shall be substantially in the following form:

[Seal.] The people of the State of New York,


Whereas we are informed by A— B-, plaintiff, that (stating the facts showing the obligation of the dedefendant to perform the act, and his omission to perform it,) therefore, in order that due and speedy justice be done in this behalf, we command you, that immediately after the receipt of this writ (or at some other speci. fied time,) you do (specifying the act to be performed,)

« PreviousContinue »