3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life. § 2127. 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 general or special term of the court; and the granting or refusal thereof is discretionary with the court. § 2128. 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 affdavits or other written roofs, upon the merits, in opposition to the applica tion. § 2129. 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. A writ of certiorari must be served as follows, except where different directions, respecting the mode of service thereof, are given bv 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. 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 two thousand one hundred and thirty-seven of this act. § 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 county, where the writ is made returnable by the amendment. § 2133. 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. 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. 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 proceeding, upon such terms as justice requires. And a general term of the 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 accordingly. § 2138. The cause must be heard at a general term of the court. In the supreme court, it must be heard at a general term, 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. 2139. 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. § 2140. 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 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 rela tor. 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 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. § 2143. 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. § 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 order; and a certified copy of each order, which in any way involves the merits, or necessarily affects the final order. 2145. 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 ar 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. § 2146. The expression, "body or officer," as used in this article, includes every court, tribunal, board, corporation, or other person, or aggre gation of persons, whose determination may be reviewed by a writ of cer tiorari; 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. 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. 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. 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, IDIOT, OR HÁBITUAL 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 ADVERTISE TITLE TITLE MENT. X-PROCEEDINGS TO CHANGE THE NAME OF AN INDIVIDUAL XI.-PROCEEDINGS FOR THE VOLUNTARY DISSOLUTION OF A COR PORATION. PROPERTY. TITLE XII-PROCEEDINGS SUPPLEMENTARY · TO AN EXECUTION AGAIN TITLE XIII.-TO COMPEL DELIVERY OF BOOKS TO PUBLIC OFFICER. TITLE I. Proceedings relating to insolvent debtors and to prisoners. ARTICLE 1. Discharge of an insolvent from his debts. 2. Exemption from arrest, or discharge from imprisonment, of 8. Discharge of an imprisoned judgment debtor from imprisonment. ། ARTICLE FIRST. DISCHARGE OF AN INSOLVENT FROM HIS DEBTS. 2149. Who may be discharged. 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, 2169. Id.; to fille proofs, if not named in schedule. 2170. Proceedings if jurors do not 2171. When insolvent required to pro- 2174 When assignment to be direc- 2175. Assignment; contents, and to 2176. Id.; trustees, how designated. 2183. Id.; exception as to foreign con- 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. 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. § 2150. 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 court of common pleas for that city and county. 2151. 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. 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 Lis debts, upon his complying with the provisions of this article. 2153. An executor or administrator may become a consenting creditor, under the crder of the surrogate's court from which his letters issued. A trustee, offcia. assignee, or receiver of the property of a creditor of the cetitioner, whether created by operation of law or by the act of parties, may |