Kelly v. Cohen — 174 Misc. 1085

Majority

p. 1085

In the Matter of the Application of Katherine Kelly, Petitioner, against S. Howard Cohen and Others, Constituting the Board of Elections of the City of New York, Respondents.^[1]

Supreme Court, Special Term, Queens County,

May 6, 1940.

Arthur Harrison, for the petitioner.

Sydney Rosenthal, for the Democratic County Committee of Queens County.

William C. Chanler, Corporation Counsel [.Russell Lord Tarbox of counsel], for the Board of Elections of the City of New York.

This is an application for a restraining order to prevent the certifying of the election of one Thomas J. Lanigan to the Democratic County Committee, etc.

First. The court can find no requirement for the board of elections to issue a certificate of election where a vacancy is filled by the county committee.

Second. The court cannot find anything in the rule adopted by the county committee repugnant to the Election Law.

Third. This court does not believe that the Legislature intended that a candidate for the office of' county committeeman need not be resident in the election district he seeks to represent, and that in order to fill a vacancy by vote of the county committee he need be; the court believes that for the purposes of filling vacancies the unit of representation must be considered the Assembly district. (See opinion of the Attorney-General, 48 State Dept. Rep. 183.)

Motion denied.