
    The People of the State of New York ex rel. Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Appellants, v. William R. Willcox and Others, as Commissioners Constituting the Public Service Commission of the State of New York, First District, Respondents.
    First Department,
    November 24, 1909.
    Certiorari—further return—power to strike out irrelevant matter — Public Service Commission — decision based on matters not in evidence.
    The court under section 3135 of the Code of Civil Procedure empowering it to direct a “ further return ” tb a writ of certiorari may order concededly irrelevant matter to be stricken out.
    As the action of the Public Service Commission in establishing through routes and joint railroad rates is judicial in character, the determination must be based upon evidence adduced upon the hearing had before it; it cannot be based on private information acquired by the Commission but not put in evidence.
    Hence, where the Commission annexed such information to its return to a writ of certiorari to review its action, the court will, order it stricken out, although the Commission states that it based its determination thereon.
    Appeal by the relators, Adrian H. Joline and another, as receivers, etc., from an order of the Supreme Court, made at the Hew York' Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of July, 1909, denying the relators’ motion to compel the respondents to correct their return to a writ of certiorari granted by said court, by striking certain parts therefrom.
    
      Robert C. Beatty, for the appellants.
    
      George S. Coleman, for the respondents.
   Houghton, J.:

On the 30th of October, 1908, the defendants, constituting the Public Service Commission of the State of Hew York for the first district made an order establishing through routes and joint rates with the Metropolitan Street Railway Company of which relators are receivers, and the Central Park, North and East River Railroad Company, commonly known as the Fifty-ninth Street Crosstown Railroad.

On the 11th day of Hovember, 1908, a writ of certiorari was issued out of the Supreme Court for a review of such order. Thereupon a motion was made in this court to quash such writ, which motion was denied on the ground that the determination of the Commission was of a quasi judicial character and hence subject to review by certiorari. (People ex rel. Joline v. Willcox, 129 App. Div. 267.) On appeal to the Court of Appeals such order was affirmed. (194 N. Y. 383.)

The writ of certiorari thus sustained commanded the defendants to certify and return “ all and singular your proceedings, decisions and actions upon the said matters and things arising under your hearing, * * * and all and singular the evidence and exhibits which were submitted to you as such Commissioners upon said hearings, * * * with the proceedings thereon with your determination as said Commissioners, to the end that your said decisions and actions as said Commissioners may be reviewed.” Thereuppn the defendants made their return setting forth all the evidence and proceedings had on the hearing before them and in addition thereto annexed what are denominated Schedules I to V both inclusive. These Schedules I to V consist of certain orders made by defendants as Commissioners and statistics gathered by them concerning the railway of which the relators are receivers, and ex jearle proceedings had by the Commission respecting the railways involved, none of which, however, were introduced in evidence on the hearing which resulted in the order of the Commission establishing through routes and joint rates for the review of which the certiorari was granted. The relators moved for an order compelling the respondents to correct their return by striking out these schedules and references to them or compelling a proper further and corrected return omitting such alleged irrelevant matter, which motion was denied, and from the order made thereon this appeal is taken.

The defendant Commissioners insist that the court has no power under section 21.35 of the Code of Civil Procedure, which provides that if a return be defective the court may order a “ further return,” to strike out any part of the return as irrelevant, but that the only remedy is to permit it to stand and disregard in its decision so much of it as is immaterial; and further, that the return is proper and in accordance with the writ directing the return of all their “ proceedings, decisions and actions,” because the Commission did in fact in making its determination which is sought to be reviewed by certiorari, consider as part of the proceeding had before it, the matters contained in Schedules I to V", although they were not introduced in evidence.

On the hearing which resulted in the order sought to be reviewed the defendant Commissioners took the position that in making their determination they had a right to consider anything affecting the matter that came to their knowledge, whether it was introduced in evidence before them or not, because their action was not reviewable by certiorari; and the relators insisted at the commencement of the hearing that whatever determination might be made should be had only upon the evidence then introduced, and that the respondents had no right to consider any matter not introduced before them on such hearing. Such view of their powers and duties prompted the defendants to move to quash the writ, but the courts have determined that such view was erroneous.

The action of the defendant Commission in making the order sought to be reviewed having been determined to be, not ministerial or executive, but judicial in character, their determination must have been based upon the evidence adduced upon the hearing had before' them. (Village of Saratoga Springs v. Saratoga G., etc., Co., 191 N. Y. 123, 147; People ex rel. Clarke v. Roosevelt, 168 id. 488; People ex rel. Smith v. Hoffman, 166 id. 462; People ex rel. Shuster v. Humphrey, 156 id. 231.)

The defendants have returned that they did consider in making their determination the matters set forth in Schedules I to Y, although not introduced in evidence before them on the hearing, and urge that, therefore, the return is proper and should not be corrected. The relators might well stand on such a return and such an assertion and ask for a reversal of the determination thus made ; but they do not choose to do so, preferring rather to have a decision upon the merits based on the evidence actually introduced before the Commission.

The learned Special Term .denied the motion to strike out or compel a corrected return omitting the alleged irrelevant matter on the ground that it was the practice of the court to permit claimed irrelevant matter in a return to a certiorari to stand, because the court on review could disregard it, and such is the holding in People ex rel. Higgins v. Grant (58 Hun, 158).

Of course the court cannot make a return for the person or body whose action is sought to be reviewed by certiorari. But where matter is returned which is clearly irrelevant and has no place in the return, if the opposing party does not seek to take advantage of such a return, but asks that a proper return be made containing, only such proceedings as were legally before the tribunal sought to be reviewed, we are of the opinion that the court has power to order a further return omitting such irrelevant matter. A return which contains concededly irrelevant matter is defective' as well as one which omits relevant matter, and is embraced within the provision of the Code permitting the court to direct a “further return.” Before the Code it was the practice to order a return amended by expunging certain portions as well as by directing a specific return as to certain particulars which had been omitted. (People ex rel. Church v. Supervisors of Allegany, 15 Wend. 198.)

The schedules referred to in the present case embrace more than 250 pages of printed matter, and they not having been introduced in evidence on the hearing, have no place in the return.

It follows that the order denying the motion must be reversed, with ten dollars costs and disbursements, and the motion to direct a further return omitting such matter and references thereto granted, with ten dollars costs and disbursements, on which return the respondents may amend the recitals in relation to the consideration by them on the hearing of such irrelevant matter as they shall be advised.

Ingraham, ¡Laughlin, Clarke and Soott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, as stated in opinion. Settle order on notice.  