Majority
p. 1028In the Matter of the Application of Sidney Fox, Suing on His Own Behalf and on Behalf of All Others Similarly Situated, Petitioner, Respondent, for an Order against S. Howard Cohen and Others, as Commissioners of Election for the City of New York, Constituting the Board of Elections of the City of New York, Respondents, and Louis Hollander, Individually and as Chairman of the Kings County Executive Committee of the American Labor Party, and John Gelo, Acting Chairman of the Kings County Executive Committee of the American Labor Party, and Philip Kapp, Treasurer of the Kings County Executive Committee of the American Labor Party, Appellants.
Order modified on the law and
p. 1029
facts by striking out the first ordering paragraph and as so modified the order is unanimously affirmed, without costs. The appellants failed to obey either the Election Law or the rules of their own party. It was their affirmative duty to secure the necessary data to enable them to send out the notices so that a meeting could be held within twenty days after the election of the members of the county committee, as required by the Election Law and the rules of the party. They did not take any steps to secure this data. However, it affirmatively appeared on the argument that when the order was made such data could not be made available in time for the appellants to perform the duty imposed upon them by the order appealed from. Therefore, an order of mandamus should not have issued against them. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.