
    In the Matter of the Application of Harry F. Gill, Respondent, for the Delivery to Him, as Secretary of the Board of Health of the Village of Sea Cliff, of the Books and Papers Belonging to or Appertaining to Such Office Now in Possession of Frederick H. Maidment, Appellant.
    
      ■Delivery of the looks and papers of a public office — when an issue of fact raised in the proceeding requires that evidence be taken and that the issue be not determined on the petition and affidavits.
    
    Under section 2471a of the Code of Civil Procedure, governing proceedings to compel the delivery of books and papers belonging and appertaining to a public office, which provides that at the time of the return of the order to show cause or at any time to which'the matter may be adjourned, on proof of the due service of the order a justice or judge to whom the application is made “ shall proceed to inquire into the circumstances,” means that when an issue of fact is raised by the affidavit interposed in opposition to the application it is the duty of the court to take evidence relative to that issue and to decide it.
    There may be cases where such an issue may properly be determined upon the petition and affidavits without recourse to oral evidence, but this is not the case where the defendant in the proceeding interposes a positive denial that he is in possession of the books, the delivery of which is sought to be compelled, and accompanies such denial by a sworn averment that a third person has the actual custody thereof.
    Appeal by Frederick H. Maidment from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 11th day of November, 1903, directing the said Maidment to deliver to Harry F. Gill all the books and papers in his possession or under his control belonging or appertaining to the office of secretary of the board of health of the village of Sea Cliff. ■
    
      George B. Stoddart, for the appellant.
    
      Joseph Kling, for the respondent.
   Willard Bartlett, J.:

This is a proceeding to compel delivery of books and papers belonging and appertaining to a public office, under section 2471a of the Code of Civil Procedure. It involves the question whether under the Public Health Law (Laws of 1893, chap. 661, § 20, as amd. by Laws of 1897, chap. 282) a village board of trustees, after having at its first meeting constituted a board of health consisting of five members, can at a subsequent meeting increase the number of members of tile board of health to seven. The learned justice before whom the application was heard answered this question in the negative, and granted the motion on the assumption that only questions of law were presented.

This assumption, however, appears to have been incorrect. It was averred in the petition that all the books and papers pertaining to the office of secretary of the board of health of the village of Sea Cliff were in the possession of Frederick H. Maidment, the appellant. Upon this petition an order to show cause was granted, as prescribed in section 2471a of the Code of Civil Procedure, and upon the return of that order Mi'. Maidment filed his own affidavit alleging that the secretary of the board of health was one William E. Fellendorf, and that “ the books and papers mentioned in the petition are in the custody and control of said Fellendorf as the Secretary of said Board of Health and are not in the possession of or under the control of deponent.” This affidavit raised a distinct issue of fact as to the actual custody and control of the books the delivery of which was sought by the. petitioner. Section 2471a of the Code of Civil Procedure provides that at the time of the return of the order to show cause or at any time to which the matter may be adjourned, on proof of the due service of the order a justice or judge to whom the application is made shall proceed to inquire into the circumstances.”’ I think this means that when an issue of fact is raised by the affidavit interposed in opposition to the application, it is the duty of the court to take evidence relative to that issue and to decide it one way or the other. To “ inquire into the circumstances” imports a judicial investigation of the questions of fact. There might be cases, of course, where such an issue could be determined upon the petition and affidavits in opposition without recourse to oral evidence, as, for example, where the allegation as to the custody and control of the books and papers in the petition was positive and the denial in the opposing affidavits Was shifty or evasive. But when, as here, the denial is positive and accompanied by a sworn averment that a person other than the appellant has the actual custody and control of the books and papers which are sought, I do not see how the matter can be decided .without taking further proof. The petition and opposing affidavit are analogous to a complaint and answer in an action where the answer-sets up a good defense, and judgment cannot be rendered in favor of the plain tiff without the introduction of- evidence tending to sustain his claim.

I think the order appealed from should be reversed, and that the proceeding should be remitted- to the learned judge who heard the same, in order that he may proceed to inquire into the circumstances, under the provisions of section 2471a of the Code of Civil Procedure.

All concurred.

Order reversed, with ten dollars costs and disbursements, and ' proceeding remitted for rehearing as directed in the opinion df Babtlett, J.  