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 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 (Code, section 2139). The final orders upon the hearing may annul or confirm, wholly or partly, or may modify, the determination reviewed (Code, section 2141). Such final order 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 (Code, section 2144).

General Provisions

In certiorari proceedings generally, other than to review an assessment of real or personal property (and this would apply to a certiorari to review the determination of the state comptroller), it is only the hearing of the merits which is to be had at the General Term. All incidental motions should be heard. at Special Term. (People ex rel. McNeary v. MacLean, 64 Hun, 206 (1892), criticised in People ex rel. Joline v. Willcox, 129 App. Div. 267 (1908). But a motion made under the Code, section 1348, to quash a writ of certiorari may be heard by the Appellate Division, and section 2138 does not limit the jurisdiction of that branch of the court to the hearing on the issues. People ex rel. Joline v. Willcox, supra, citing Matter of

Tilyou, 57 App. Div. 101; criticising People ex rel. McNeary v. MacLean, 64 Hun, 205 and People ex rel. Miller v. Peck, 73 App. Div. 89. In reviewing a decision of the comptroller, the court is not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. People v. Campbell, 88 Hun, 544 (1895).

The Relator.-Under the statute (Tax Law, section 199), "any person, partnership, company, association or corporation affected" by the determination of the comptroller is given the right to review such determination where application has been made for revision or resettlement of any account for taxes under Article IX of the Tax Law.

Time limitation for making application for writ.-Within thirty days after service of the notice of the determination of the comptroller, the application for the writ must be made and the comptroller must receive eight days' notice of such application for the writ (Tax Law, sec. 200). This provision is to be read together with section 2128 of the Code of Civil Procedure, which provides that with the notice must be served copies of the papers upon which the application is to be made. That section of the Code further provides that where notice is given, the person served may produce affidavits or other written proofs, upon the merits, in opposition to the application.

The objection that the application for the certiorari was not made within thirty days after service upon relator of the notice of settlement, as required by the statute, cannot be raised for the first time on appeal. People ex rel. H. & H. Co. v. Campbell, 139 N. Y. 68 (1893).

Prior to the Tax Law of 1896 it was held in People ex rel. American Contracting Co. v. Wemple, 60 Hun, 225 (1891); followed, People ex rel. Brush El. Mfg. Co. v. Wemple, 129 N. Y. 543, 549, that the thirty days' limit of time, prescribed

by Section 17 of Chapter 501, Laws of 1885, for the application for a writ of certiorari, did not apply to the issuing of such writ under Section 20 of Chapter 463, Laws of 1889, but it would now seem that under the language of Section 200 of the Tax Law, the thirty days' limit of time applies to "any determination by the comptroller under this article" (Art. IX, Tax Law). In the case of People ex rel. Brush Electric Mfg. Co. v. Wemple (supra), the corporation claimed it was not lawfully subject to any tax or required to make a report and the court held the time limitation applied simply to cases where reports had been made. As the statute (Sec. 200) now reads, the time limit applies to a review of "any audit and statement of an account or any determination by the comptroller," and this would seem to cover a decision as to the taxable status of a corporation.

When the application to the comptroller for readjustment has been signed but not verified, the court on the certiorari proceeding cannot assume in this respect that there was not sufficient proof before the comptroller. People v. Campbell & Roberts, 88 Hun, 545.

Application for revision as prerequisite to the writ.- The Tax Law (Sec. 199) provides that the determination upon any application made to the comptroller for a revision and resettlement of any account may be reviewed and this language clearly makes the application for revision and resettlement a prerequisite because it is only the determination upon any application for revision and resettlement that may be reviewed.

Unless the corporation aggrieved first makes application for a revision or resettlement under section 199 of the Tax Law, the writ of certiorari cannot be sustained. People ex rel. Edison Co. v. Wemple, 11 Supp. 246.

The statute (Sec. 198, Tax Law) contemplates but one revision by the comptroller and after it has been made his power

is spent and his refusal to make a second revision cannot be reviewed by certiorari. People ex rel. Am. Surety Co. v. Campbell, 64 Hun, 417 (1892), cited in People ex rel. Edison Co. v. Wemple, 69 Hun, 367-369 (1893). Where the comptroller denies a revision or readjustment upon an application therefor, certiorari is the proper remedy. People ex rel. Edison Co. v. Wemple, 61 Hun, 53 (1891).

Petition. Where the relator signed the petition and was named in the affidavit of verification, it is sufficient, although he did not sign the verification. People v. Campbell, 88 Hun,

544.

The Writ when the Comptroller's term has expired.-In such event, the writ is properly directed to his successor, and the predecessor is not a necessary party. Matter of Tiffany & Co., 80 Hun, 486 (1894).

Containing unauthorized directions.- When the writ contains a direction to the comptroller to return the grounds of his refusal to revise a tax, such provision may be stricken out on motion as unauthorized under the statute. People ex rel. Realty Co. v. Miller, 92 App. Div. 116 (1904).

Return. Where the return states that the principal business of the corporation was the owning of, and the licensing of parties to use, various patents relating to electricity; that its principal income was derived from royalties upon its patents; that its capital was largely represented by its ownership of bonds and stocks in other companies, and further, that the relator furnished but little, if any, light or ran or operated wire to any extent; it was held that the return did not deny the relator's statement that it manufactured and furnished electricity to its customers. People ex rel. Edison Company v. Campbell, 88

Hun, 527 (1895). The return of the comptroller is conclusive as to the facts. People ex rel. Edison Co. v. Campbell, 88 Hun, 530 (1895); reversed on other grounds in 148 N. Y. 759. The return of the comptroller should state the facts upon which he bases his determination and should show the whole case, so that the court may determine whether the action of the comptroller was erroneous or illegal and if so, that the court may make the proper determination. People ex rel. Staten Island R. R. Co. v. Roberts, 4 App. Div. 334 (1896).

Where allegations in the petition are denied by the return and no evidence is given in support of such allegations so denied, they will not be considered. People ex rel. Hubert Apartment Ass'n v. Kelsey, 110 App. Div. 617 (1906); citing on this point, People ex rel. Lester v. Eno, 176 N. Y. 513; aff'd 184 N. Y. 573.

The statute nowhere authorizes or requires the comptroller to return, in obedience to the writ, the grounds of his refusal to revise or readjust a franchise tax imposed upon a corporation. If the writ contains such a provision it may be stricken out on motion as unauthorized. People ex rel. N. Y. Realty Co. v. Miller, 92 App. Div. 116.

It seems that the return of the comptroller to a certiorari should set forth the items of his appraisal, instead of simply giving the total, and making the evidence a part of the return. People ex rel. Union Pacific Tea Co. v. Roberts, 145 N. Y. 375.

Further return.-A further return by the comptroller cannot be had when his return contains all the evidence and proceedings before him, including his decision. People ex rel. Wiebusch & H. Co. v. Roberts, 18 Misc. 530 (1896); reversed on other grounds, 19 App. Div. 574.

The court, under section 2135 of the Code, empowering it to direct a "further return" to a writ of certiorari may order