Majority
p. 371In the Matter of the Application of Samuel S. Koenig, Respondent, for Relief against J. Gabriel Britt and Others, Constituting the Board of Elections of The City of New York, Appellants. First Department, September 28, 1911.
Headnote
See head note in Matter of Hopper v. Britt (ante, p. 363).Appeal by the. defendants from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, granting a peremptory writ of mandamus.
Terence Farley and Abram I. Elkus, for the appellants board of elections, etc.
D-Cady Herrick, for the Democratic State committee.
A. S. Gilbert, for the petitioner.
This appeal was argued with the case of Matter of Hopper v. Britt ( 146 App. Div. 363 ) and presents the same question pre
p. 372
sented on that appeal. For the reasons stated in the opinion in that case the order appealed from must be reversed, with 1 ten dollars costs and disbursements, and the application denied, with fifty dollars costs.
McLaughlin, Miller and Dowling, JJ., concurred; Clarke, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs, as matter of law and not in the exercise of discretion.