Friedman v. Bates — 140 A.D. 404

Majority

p. 404

In the Matter of Harold J. Friedman v. Lindon Bates, Jr.

First Department,

November 2, 1910.

Headnote

Elections — organization of convention — roll of elected, delegates prerequisite — nomination by persons not elected delegates.

No political convention can be organized under the statute until the result of the primary election has been canvassed by the custodian of primary records and he lias prepared a list of the elected delegates and delivered it to the secretary of the political committee of the party participating in the primary election. The list so prepared is the roll of the convention.

Where the members of the convention who made nominations were not the persons certified by the custodian of the primary records as the persons elected as delegates, the nominations are not regular and are not entitled to be placed upon the official ballot.

Appeal from an order of the Supreme Court, made at the New York Special Term, reversing the determination of the board of elections refusing to sustain the objection to the certificate of nomination of Lindon Bates, Jr., as member of Assembly in the twenty-ninth Assembly district.

Elihu Root, Jr., and Abraham G. Meyer, for the appellant.

A. W. Stump, for the respondent.

Section 63 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22) expressly provides that the custodian of primary records shall, as therein prescribed, canvass the statements filed with-him as the result-of the primary election, and shall thereupon prepare certified .statements of the result of the primary elections of each party participating therein and shall'make up the rolls of- the conventions for which delegates were elected at such primary elec

p. 405

tions and shall promptly mail and if requested deliver one copy thereof to the respective secretaries of the proper political committees of the several parties participating in such primary election. It was also made the duty of the custodian of primary records to prepare a certified transcript of such statements and deliver the same to any individual or political committee upon demand on payment of the fees prescribed therefor. He is also required to deliver upon demand to a person who by the statements so filed and canvassed is shown to have been elected as delegate to a convention a certificate of his election and such certificate shall be sufficient to entitle the person named therein to be admitted to the convention to which he shall have been elected.

And section 67 df the act provides that the person selected to call the convention to order is to have the custody of the roll of the convention until it shall have been organized.

It is thus by the statute made a condition of the assemblage of a convention elected at a primary- election, that the result of the election shall be canvassed by the custodian of primary records who shall as a result of that canvass prepare a list of those elected delegates to the convention, which is to be delivered to the secretary of the political committee of the party participating in such primary election, and that list so prepared is the roll of the convention. Until such a canvass is had and such a roll prepared and delivered, there can be no convention organized under the statute; and it is only the members who are thus determined to be delegates to the convention who can organize the convention. (Matter of Thomas, 128 App. Div. 1330 ; Matter of Byrne, Id. 334.)

It is conceded that the members of the convention who met and made the nomination to which objection is made were not the persons certified by the custodian of primary records as the persons elected as delegates to this convention. It follows that the nomination made by this body was not a regular nomination entitling it to go upon the official ballot.

The order should be affirmed.

Present — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ.

Order affirmed.