Ginsberg v. Lomenzo — 23 N.Y.2d 94

Majority

p. 94

In the Matter of Robert M. Ginsberg et al., Respondents, v. John P. Lomenzo, as Secretary of State of the State of New York, Respondent, and Eugene J. McCarthy et al., Intervenors-Appellants.

Argued October 16, 1968;

decided October 17, 1968.

p. 95

Arthur J. Goldberg, John W. Dickey, John J. Clyne, Edward N. Costikyan, H. Richard Schumacher, Martin London, Robert Conrad, Edward F. Malone and Cornelius B. Prior, Jr., for intervenors-appellants.

I. Those who would attain the office of President and Vice-President of the United States are “ candidates ”. Their names may not be placed on the ballot without their consent. (Matter of American Labor Party [Flanagan], 182 Misc. 971 , 268 App. Div. 836 ; Thomas v. Cohen, 146 Misc. 836 ; Matter of Mahoney v. Lomenzo, 21 A D 2d 971 , 14 N Y 2d 952 .) II. The provisions of the Election Law make it clear that the consent of the candidate required by section 139 applies to candidates for President and Vice-President and not just to electors. III. Eugene J. McCarthy has a constitutionally protected right to avoid being the candidate of any particular party or independent body in any particular election. (Griswold v. Connecticut, 381 U. S. 479 .) IV. This court should grant leave to appeal from the order denying intervention and should reverse it. (Matter of Muccioli v. Board of Stds. & Appeals of City of N. Y., 42 Misc 2d 1088 ; Matter of Altimari v. Meisser, 23 A D 2d 672 , 15 N Y 2d 964 ; Soto v. Lenscraft Opt. Corp. [Rayex], 7 N Y 2d 747 .) V. Intervenors are persons who may appeal from the Appellate Division’s judgment on the merits. (Carples v. Cumberland Coal & Iron Co., 240 N. Y. 187 ; Giles v. Halbert, 12 N. Y. 32 ; Hobart v. Hobart, 86 N. Y. 636 ; Matter of Hotel St. George Corp., 277 App. Div. 1125 ; Matter of Thompson, 279 N. Y. 131 .)

Louis J. Lefkowitz, Attorney-General (Jean M. Coon, Herbert H. Smith and Ruth Kessler Toch of counsel), for John P.

p. 96

Lomenzo, respondent.

I. The order of the Appellate Division denying the application to intervene is not reversible by this court. (Matter of Altimari v. Meisser, 23 A D 2d 672 , 15 N Y 2d 964 ; Matter of Halsey, 93 N. Y. 48 ; Ithaca Gas Light Co. v. Treman, 93 N. Y. 660 ; White’s Bank of Buffalo v. Farthing, 101 N. Y. 344 ; Matter of Bohnet, 150 N. Y. 279 ; Western Union Tel. Co. v. Shepard, 169 N. Y. 170 ; Matter of City of Hew York [Hall of Records], 196 N. Y. 565 ; Matter of City of Hew York [Rockaway Beach], 288 N. Y. 51 ; United States v. California Canneries, 279 U. S. 553 ; Haase v. Haase, 261 Ill. 30 ; Krenitsky v. Ludlow Motor Co., 276 App. Div. 511 .) II. The moving papers on the petition to intervene are deficient since they do not provide for notice to electors for other parties and independent bodies, nor do they produce any additional arguments or information for the guidance of the court. (Forker v. Royal Development Co., 189 Misc. 798 ; Matter of Schwimmer v. Power, 21 A D 2d 835 .) III. There was nothing presented to the Appellate Division in the moving papers which would justify granting even an original party to the action the right to be heard on reargument. Reargument will be granted by the courts only when it is shown that some question decisive of the case and duly submitted by counsel was overlooked. (Mount v. Mitchell, 32 N. Y. 702 ; Marine Hat. Bank v. National City Bank, 59 N. Y. 67 ; Fosdick v. Town of Hempstead, 126 N. Y. 651 ; Burke v. Continental Ins. Co., 184 N. Y. 570 ; Matter of Quinby v. Public Serv. Comm., 227 N. Y. 601 ; City of Buffalo v. Cottle, 255 App. Div. 751 , 278 N. Y. 714 ; Baumann v. Citizens Trust Co., 248 App. Div. 840 , 249 App. Div. 369 , 276 N. Y. 623 ; Walsh v. Hanan, 93 App. Div. 580 .) IV. There is no statute which requires the presidential or vice-presidential candidate to accept a nomination. Matter of Mahoney v. Lomenzo, which was affirmed by this court four years ago ( 14 N Y 2d 952 ), requires only that the electors shall accept their nomination. All of them have done so here and under the Mahoney decision are entitled to be upon the ballot.

Marshall Berger for Robert M. Ginsberg and others, respondents.

The order entered October 16, 1968, insofar as it denied intervention, should be reversed, without costs, and

p. 97

intervention directed. The present case is materially different from Matter of Altimari v. Meisser ( 23 A D 2d 672 , app. dsmd. 15 N Y 2d 964 ). Here under the unusual circumstances presented, including the fact that the petitioners-respondents do not, and did not, object to the intervention of the appellants, there is an absence of any prejudice to the respondent Secretary of State. Consequently, intervention should have been granted as a matter of law. (Cf. CPLR 1012, 1013.)

On the appeal proper, the order of the Appellate Division, entered October 7, 1968, should be reversed, without costs, and the determination of the Secretary of State reinstated on the ground that, within the sense of New York’s Election Law generally, a person named or designated by a party or an independent group as a candidate for the Presidency of the United States is privileged to decline such office and to prevent his name from appearing on the ballot. In the present case Senator McCarthy unequivocally and formally notified the Secretary of State that, far from giving consent, he was “ declin [ing] any and all nominations which I may receive for the office of candidate for President and/or Vice President of the United States in any petition filed with the Secretary of State of the State of New York.” And it is to be noted, the Secretary of State, based on that advice, initially refused to direct that Senator McCarthy’s name be placed on the ballot.

This case involves the situation in which the proposed electors are committed to a particular presidential candidate. Having chosen a candidate who is unwilling to have his name thus used the proposed electors in this case are disqualified under our law from being on the ballot. We do not pass on the question which may arise in cases where electors are not committed.

Chief Judge Fuld and Judges Scileppi, Bergan, Keating, Bbeitel, Jasen and Steubr^[1] concur.

Order, entered October 16, 1968, insofar as it denied intervention, reversed, without costs, and intervention directed.

Order of reversal, entered October 7, 1968, reversed, without costs, and the determination of the ¡Secretary of State reinstated.

* Designated pursuant to section 2 of article VI of the State Constitution in place of Burke, J., disqualified.

Cases cited

In re Convention Nominations Certified by the American Labor Party 182 Misc. 971 N.Y. Sup. Ct. 1944-09-05 p. 95
Thomas v. Cohen 146 Misc. 836 N.Y. Sup. Ct. 1933-01-03 p. 95
Mahoney v. Lomenzo 14 N Y 2d 952 N.Y. 1964-09-29 p. 95, p. 96
Griswold v. Connecticut 381 U. S. 479 SCOTUS 1965-06-07 p. 95
Muccioli v. Board of Standards & Appeals 42 Misc 2d 1088 N.Y. Sup. Ct. 1964-02-11 p. 95
Altimari v. Meisser 15 N Y 2d 964 N.Y. 1965-03-18 p. 95, p. 96, p. 97
Carples v. Cumberland Coal & Iron Co. 240 N. Y. 187 N.Y. 1925-05-05 p. 95
Giles v. Halbert 12 N. Y. 32 N.Y. p. 95
Hobart v. Hobart 86 N. Y. 636 N.Y. 1881-10-25 p. 95
In re the Accounting of Fifth Avenue Bank 279 N. Y. 131 N.Y. 1938-11-29 p. 95
In re the Estate of Halsey 93 N. Y. 48 N.Y. 1883-06-12 p. 96
Ithaca Gas-light Co. v. Treman 93 N. Y. 660 N.Y. 1883-10-26 p. 96
White's Bank v. Farthing 101 N. Y. 344 N.Y. 1886-01-26 p. 96
Bohnet v. Mayor of New York 150 N. Y. 279 N.Y. 1896-10-13 p. 96
Western Union Telegraph Co. v. Shepard 169 N. Y. 170 N.Y. 1901-12-20 p. 96
In re the Estate of Neher 196 N. Y. 565 N.Y. 1909-11-23 p. 96
In re the City of New York 288 N. Y. 51 N.Y. 1942-04-23 p. 96
United States v. California Coöperative Canneries 279 U. S. 553 SCOTUS 1929-05-20 p. 96
Forker v. Royal Development Co. 189 Misc. 798 N.Y. Sup. Ct. 1947-08-04 p. 96
Schwimmer v. Power 21 A D 2d 835 N.Y. App. Div. 1964-06-30 p. 96
Mount v. Mitchell 32 N. Y. 702 N.Y. p. 96
Marine National Bank v. National City Bank 59 N. Y. 67 N.Y. 1874-11-17 p. 96
Fosdick v. Town of Hempstead 126 N. Y. 651 N.Y. 1891-04-21 p. 96
Burke v. Continental Insurance 184 N. Y. 570 N.Y. 1906-03-13 p. 96
Quinby v. Public Service Commission 227 N. Y. 601 N.Y. 1919-10-21 p. 96
Baumann v. Citizens Trust Co. 276 N. Y. 623 N.Y. 1938-01-04 p. 96