In re Sweeney — 209 N.Y. 567

Majority

p. 567

In the Matter of the Petition of Daniel J. Sweeney, Respondent, to Review the Action of the Commissioners of Elections for the County of Montgomery, Appellants. The Secretary of State of the State of New York, Appellant.

Headnote

Matter of Sweeney, 158 App. Div. 496 , reversed.'

(Argued October 28, 1913;

decided October 29, 1913.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 24, 1913, which reversed an order of Special Term denying a motion for an order directing the secretary of state to cancel the certificate issued to Henry V". Borst as the nominee for justice of the Supreme Court upon the Socialist ticket in the fourth judicial district and granted said motion.

p. 568

Thomas Carmody, Attorney-General (Joseph A. Kellogg and Claude T. Dawes of counsel), for secretary of state, appellant.

Andrew J. Nellis for commissioners of elections, appellants.

Charles G. Fryer and H. L. Slobodin for respondent.

We think that the petitioner was not entitled to any relief against the secretary of state. If he is entitled to maintain a single proceeding against both the commissioners of elections and the secretary of state it must be by section 134 of the Election Law in conjunction with section 56 of said act. Section 134 requires notice to he given to the candidates affected, and no such notice has been given in this case. If, as claimed, it will become the duty of the secretary of state, on the receipt of the amended returns from the commissioners of election, to give a new certificate of nomination without an order of the court, then the petitioner’s remedy is by mandamus.

The order of Appellate Division, so far as it reverses the order of the Special Term, should be reversed, without costs to either party.

Cullen, Oh. J., Gray, Willard Bartlett, Hiscocr, Chase, Hogan and Miller, JJ., concur.

Order reversed, etc.