Opinion
March 8, 1922.
Thomas K. Smith, for the relator.
Charles D. Newton, Attorney-General [ Henry C. Henderson and T. Paul McGannon, Deputies Attorney-General, of counsel], for the respondents.
The writ of certiorari herein is not authorized by statute but is valid as a common-law writ. ( People ex rel. Dawley v. Wilson, 232 N.Y. 12.) As such the matter should be heard in the first instance in this court and the order of the Special Term assessing the damages was unauthorized. (Code Civ. Proc. § 2138.) From that order the Attorney-General has appealed. ( 198 App. Div. 158. ) A reversal thereof will leave pending in this court the writ of certiorari to be disposed of as a common-law writ. The determination sought to be reviewed by the relator is clearly erroneous for the reason that it is based on the theory that awards should not be made for damages in respect to the Karakul breed of fur-bearing sheep in excess of what would be made in respect to ordinary animals of the same species. Damages should be awarded for the actual value of the animals killed and for the actual damages to such as were not killed but injured. ( 232 N.Y. 12.) It follows that as in ordinary certiorari proceedings this matter should be returned to the appropriate board or body to determine the damages on the correct theory.
All concur, except KILEY, J., dissenting; HINMAN, J., not sitting.
Order of Special Term of August 21, 1920, reversed. Determination sought to be reviewed by relator annulled, with fifty dollars costs and disbursements, and matter remitted for further consideration.