
    PEOPLE ex rel. DREICER v. OUDERKIRK et al., Assessors.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.)
    Certiorari—Compelling Return —Payment oe the Fees.
    Under Code Civ. Proc. § 2005, requiring a person on whom á writ of certiorari is served to make a return on tender of the fees allowed by law, a return will not be required until such fees are paid, where it is necessary to embrace in the return copies of papers on file in a town clerk’s office.
    Appeal from special term.
    Certiorari by Jacob Dreicer to review the proceedings of Isaac T. Ouderkirk and others, as assessors. From an order requiring defendants to make and file a return to the writ without payment or tender of their fees, defendants appeal. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Edgar T. Brackett, for appellants.
    A. W. Shepherd, for respondent.
   MAYHAM, P. J.

The assessment roll which the relator, by his certiorari, desired to bring up for review, was, at the time of the granting of the writ, filed, pursuant to law, in the town clerk’s office, from which the defendants could not legally withdraw the same. But they could obey the writ by returning sworn or certified copies thereof. People v. Kromer, 5 Misc. Rep. 54, 25 N. Y. Supp. 48. Such a return would, however, impose upon the defendants the labor and expense of making or procuring copies of the assessment roll. Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned seems to be a condition precedent, which must be complied with before a party can be compelled by mandamus to make such return. This rule applies to public bodies or offices as well as individuals. Accordingly, this court held that a board of supervisors, whose acts in refusing to allow a sheriff’s bill were sought to be reviewed on certiorari, could not be compelled to return their action, and the bill presented to them for audit, until the fees for making such return were paid. People v. Sup’rs of Fulton Co., 64 Hun, 375, 19 N. Y. Supp. 773. This case is, in principle, like the case at bar, and we think decisive of it. The order must be reversed, with $10 costs and printing disbursements. All concur.  