People ex rel. Steinert v. Britt — 146 A.D. 683

Majority

p. 683

The People of the State of New York ex rel. Max Steinert, Appellant, v. J. Gabriel Britt and Others, Respondents.

First Department,

November 1, 1911.

Headnote

Elections — certificate of independent nomination — qualification to ■ sign certificate — registration — failure to file certificate within time required.

An elector to be qualified to sign a certificate of independent nomination need not have been registered at the time; it is sufficient if he registers before his name is counted.

p. 684

Mandamus will not issue to compel the acceptance and filing of such certificate of nomination, if it was not tendered for filing twenty days before . the election, as required by section 128 of the Election Law.

Appeal by the relator, Max Steinert, from an order denying the relator’s motion for a- mandamus compelling the respondents to accept for filing an independent certificate of nomination. .

Paul Armitage, for the appellant.

Terence Farley and John G. Saxe, for the respondents.

Section 123 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap, 22], as amd. by Laws of' 1911, chap. 649) provides for the qualification of the electors signing independent nominations. Such an independent nomination must he subscribed by the required number .of such electors, each of , whom shall add. to his signature his. place of residence and make oath that he is an elector and has truly stated his residence. But it is not required that he shall have been registered at the timé he signs the certificate! The last clause of. that section then provides for the counting of the persons sign-ing such a certificate of nomination, and" it is there provided that “the name'of no person signing an independent certificate of nomination shall be counted unless such person shall on one of the days of registration in such year be registered as a qualified elector, * *■ *. ' For the purpose of ascertaining, whether thé person whose name appears on an independent certificate of nomination signed such certificate the affidavit or testimony ■of such person that he did not sign such certificate shall be prima facie evidence that he did not sign such certificate.”

The intent seems clear that it is not necessary that the elector signing á certificate of nomination.shall at the time of signing such certificate have been registered;, and it will answer the requirements of the statute if, before his name" is counted, he shall have been duly registered.

‘As it is .conceded that this certificate of nomination was not tendered for filing or filed twenty days before the election, as required by section 128 of the Election Law, it follows

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that the court below was right in sustaining the objection to the certificate, and the order should, therefore, be affirmed.

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

Order affirmed.