(a) When filed and served. The return shall consist of an affidavit to be served in the same manner as an answer in a special proceeding and filed at the time and place specified in the writ, or, where the writ is returnable forthwith, within twenty-four hours after its service.
§ 7008.Return.
Article 70. Habeas Corpus · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 7008 requires the person served with a habeas corpus writ to file a return by affidavit, on the writ's timetable, fully stating the custody, its authority and cause, and any transfer of the detained person, with the detaining mandate attached.
Full Text of CPLR 7008
(b) Content. The affidavit shall fully and explicitly state whether the person detained is or has been in the custody of the person to whom the writ is directed, the authority and cause of the detention, whether custody has been transferred to another, and the facts of and authority for any such transfer. A copy of any mandate by virtue of which the person is detained shall be annexed to the affidavit, and the original mandate shall be produced at the hearing; where the mandate has been delivered to the person to whom the person detained was transferred, or a copy of it cannot be obtained, the reason for failure to produce it and the substance of the mandate shall be stated in the affidavit.
Plain-English Summary
CPLR 7008 sets the form and timing for the return that section 7006 requires. The return is an affidavit, served the way an answer in a special proceeding would be served, and filed at whatever time and place the writ specifies -- or, if the writ is returnable forthwith, within twenty-four hours after it is served.
The content has to be complete, not conclusory. The affidavit must fully and explicitly state whether the detained person is or has been in the custody of the person the writ was directed to, the authority for and cause of the detention, and whether custody was transferred to someone else, along with the facts and authority behind any such transfer. Whatever mandate authorizes the detention gets a copy attached to the affidavit, and the original has to be produced at the hearing; if the mandate went along with the person to whoever the person was transferred to, or a copy cannot be gotten, the affidavit has to explain why and describe the mandate's substance instead.
Frequently Asked Questions
What form does the return to a habeas corpus writ take?
An affidavit, served the way an answer in a special proceeding is served.
When must the return be filed?
At the time and place the writ specifies, or within twenty-four hours after service if the writ is returnable forthwith.
What must the return's affidavit state?
Whether the detained person is or has been in the custody of the person the writ was directed to, the authority and cause for the detention, and whether and how custody was transferred to anyone else.
Does the return need to include a copy of the detention mandate?
Yes, a copy must be attached to the affidavit, and the original must be produced at the hearing.
What if the original mandate can't be produced at the hearing?
The affidavit must state the reason it can't be produced and describe the mandate's substance instead.
Advisory Committee Notes
Subd (a) of this section is derived from subd 3 of CPA § 1244. The phrase “affidavit to be served in the same manner as an answer in a special proceeding” has been added to explain the word “return,” but complete conformity with § 402 is not recommended because of the committee’s desire to retain the historic writ terminology. The time within which an affidavit must be submitted for a writ that is returnable forthwith has been set at twenty-four hours after service of the writ in all cases. The provision of the civil practice act allowing twenty-four hours for each twenty miles from the place of service to the place where the writ is returnable was drafted at a time prior to modern modes of transportation. See Rev State pt 3, c 9, art 3, § 101 (1859). Should more than twenty-four hours be necessary, the judge issuing the writ may take this into account in fixing the return date. Where the writ is not made returnable forthwith, the affidavit is to be served at the times indicated for an answer in § 403(b). Where the writ is returnable less than eight days after service, the answering affidavit may be served on the return day.
Subd (b) of this section is derived from CPA § 1245. The language has been simplified but no change in meaning is intended. The last paragraph of CPA § 1245 which required a verification except for a sworn public officer has been omitted in view of the reference to an affidavit.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: CPLR 7008 habeas corpus returnfiling a return to habeas corpus writ NYhabeas corpus return affidavit New York