McShane v. Murphy — 86 A.D. 566

Majority

p. 566

In the Matter of the Complaint of John J. McShane, a Citizen of the State of New York, Appellant, v. John H. Murphy, as Mayor of the City of Cohoes, Respondent.

Headnote

Election — the appointment of election officials by the mayor of a city cannot be reviewed by a justice under section 11 of the Primary Election Law.

A justice sitting at chambers has no power, under section 11 of the Primary Election Law (Laws of 1899, chap. 473), to review the action of the mayor of a city in appointing election officers, as the jurisdiction conferred by such section only relates to a right given or a duty enjoined by that act, while the power of a mayor to appoint election officers is given by section 12 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 95).

Appeal by the complainant, John J. McShane,; from an order made by a justice of the Supreme Court at Chambers and entered in the office of the clerk of the county of Albany on the 8th day of September, 1903, denying the complainant’s motion to review and set aside the action of the mayor of the city of Cohoes in the appointment of election officials, and directing him to appoint election officers from a certain list filed with him and authenticated by the appellant as chairman of the Democratic general city committee of the city of Cohoes. •

Application under section 11 of the Primary Election Law (Laws of 1899', chap. 473) to review the action or alleged neglect of the respondent in appointing, election officers to represent the- Demo

p. 567

cratic party in the city of Cohoes. From an order made by a justice of the court, denying the application for want of power, the-complainant appeals.

Mark Cohn, for the appellant.

Peter A. Delaney and Henry A. Strong, for the respondent.

We think the justice sitting at Chambers had no power under section 11 of the Primary Election Law (Laws of 1899, chap. 473) to grant the relief asked for by the complainant, as the power of the mayor to appoint election officers is not given by that law, but by the Election Law (Laws of 1896, chap. 909, § 12, as amd. by Laws of 1901, chap. 95), and the summary jurisdiction given to justices under section 11 of the Primary Election Law only relates to ■the review of the action or neglect of a public officer or board with regard to a right given or duty prescribed by that act, and, therefore, the justice was right in denying the application for want •of power.

The order should be affirmed, with ten dollars costs and •disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.