The opinion of the court was delivered by

This motion to strike out the return to this alternative writ of mandamus can only succeed if the return is found to be manifestly false, frivolous or calculated to embarrass or delay the remedy sought. Silverthorne v. Warren Railroad Co., 4 Vroom 173; Gallager v. Board of Public Works of Jersey City, 16 Id. 465.

*346The return is criticised because it states that five miles of pipe have been laid, while this fact was not denied in the alternative writ. This fact is contained, however, in the statement in the writ of the duty imposed by the ordinance, and the statement, so repeated in the return, raises no issue and does no injury.

The return is criticised also because it states that the pipe was six inches in diameter, and were laid, &c., using the past instead of the present, the objection being that the return does not show the performance of the requirement that the mains and lateral pipes should be of a strength and size sufficient, &c., but that the return only shows that the pipes were of a size sufficient, &c. But the charge in the writ is that the water company has not provided mains and lateral pipes of a size and strength, &c., and the return says that the water company did provide, and therefore shows performance so far as the breach of duty is charged in the writ.

So, again, the charge is that the water company has not laid its pipes at a depth of three feet beneath the ground, and the return asserts that the pipes were so laid. The return meets the assertion of a breach of duty directly.

The return is also criticised for merely stating that the supply pumps are so constructed that the water can be pumped directly to the street mains in case of fire, without stating that they are so constructed as to secure the advantage to be derived from the board of fire underwriters and adjusters by reason of the fact that the water-supply is up to the requirements for securing a reduction of the premium rates in towns having a water-supply.

The return, however, states that no duty to supply water for the extinguishment of fire arises until a contract to do so is entered into by the borough -with the water company. It appearing that the execution of no such contract is asserted in the alternative writ, the return seems to be sufficient.

The charge in the writ that the water company has not erected a tank or. tower within the boundaries of the borough is admitted by the silence of the return in respect to that statement, and by the statement in the return that the com*347pany has erected a standpipe adjacent to the boundaries of the borough of a capacity greater than that called for in the ordinance.

Upon this showing of the return, we do not think the return can be said to be frivolous or sham. Although the duty of the company to build a tank or tower within the borough has not been performed, it is not clear that the peremptory writ would go to compel the erection of such a structure, if, in fact, a tank had been already erected adjacent to the boundary of the borough which accomplished all the purpose for which the original plant was to be installed. Certainly, if it was erected with the knowledge or without the dissent of the municipal authorities, and for three or four years had been efficient in supplying water in accordance with the contract arising from the acceptance of the ordinance, a legal question of serious importance would arise respecting the right of the relator to compel the construction of an additional plant within the borough limits. The element of estoppel is not fully presented in the return, but it cannot be said that the return, as framed, is frivolous or sham upon its face.

The relator, however, relies upon the testimony taken to be used upon the hearing of the rule to show cause why a writ should not issue for the purpose of showing that the return is sham.

The evidence upon which the writ issues is not a part of the record, and upon demurrer to the writ, or demurrer to the return, could not be used to supply essential facts or be considered in deciding a demurrer. Commercial Bank v. Canal Commissioners, 10 Wend. 25; Fairbanks v. Sheridan, 14 Vroom 82, 85.

Nevertheless, as affidavits can be taken to be used to show the evasive or fraudulent character of a return to a peremptory writ (State v. Griscom, 3 Halst. 136, 138), or affidavits can be taken to be used on a motion to strike out a plea as sham, we see no reason why such testimony may not be used upon a motion to strike out the return to a writ of mandamus. And we see no reason why the testimony taken upon a rule to show cause should not be used, with the permission of the *348court, upon such a motion; but we think that this should be only by judicial permission, with notice to the opposite party that the testimony is to be used for that purpose, so that such party may be prepared to argue the case upon that testimony, or permitted to take additional testimony if he deems it necessary.

The relator treated this testimony as a part of the record, but no judicial permission was given to so use it and no notice was given the defendant that it was to be so used.

Our conclusion is that the motion to strike out should be refused. We further think if the defendant chooses to amend his return in any respect, he may do so within ten days, upon payment of the costs of such motion to amend, and that the plaintiff may plead or demur to this return or to the amended return within ten days after the lapse of the first ten days given for the amended return.