§ 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 the 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. From 71 of the R. S. § 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. From Id., part of § 72. See § 2116. § 2115. State treasurer to pay damages, etc., to gov ernor. 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. From Id., 73. § 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. From Id., remainder of § 72. § 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. From §§ 74 and 75 of the R. S. Am'd by ch. 946 of 1895. 82118. 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, a 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. From §§ 74 and 75 of the R. S. Am'd by ch. 946 of 1895. § 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. From Id., 76. ARTICLE SEVENTH. The Writ of Certiorari, to Review the Determination of an Inferior Tribunal. SEC. 2120. Cases where writ may issue. 2121. Cases where it cannot issue. 2122. The same. 2123. When issued from supreme 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. 2144. Entry and enrollment of final order. § 2120. Cases where writ may issue. The writ of certiorari regulated in this article, except the writ specified in section 2124 of this act, is issued to review the determination of a body or officer. It can be issued in one of the following cases only: 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. See § 2121, 2122. § 2121. Cases where it cannot issue. 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. See § 1356, 1357. § 2122. The same. 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 rehear 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. When issued from supreme court. A writ of certiorari can be issued only out of the supreme court; except in a case where another court is expressly authorized by statute to issue it. Am'd by ch. 946 of 1895. § 2124. When from another court. 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. From 2 R. S. 599, Part 3, ch. 9, tit. 3, § 45 (2 Edm. 621). See § 1215. § 2125. Limitation of time for review. 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. Id.; in case of disability. The appellate division of the supreme court, 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 offense, for a term less than for life. Am'd by ch. 946 of 1895. See § 2091. § 2127. Application for writ; where and how made. 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 term of the appellate division of the supreme court, or at special term; and the granting or refusal thereof is discretionary with the court. Am'd by ch. 946 of 1895. § 2128. When notice necessary; service thereof. 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, may, 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. To whom writ directed. 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. Mode of service. 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 2071 of this act, for service, upon a like board or body, of an alternative writ of mandamus. See § 2071. § 2131. Stay of proceedings. 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. 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 2137 of this act. See 88 2132, 2138. 2132. When and where writ returnable. 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 |