Friedman v. Bates — 125 N.Y.S. 259

Majority

p. 259

(140 App. Div. 404.)

FRIEDMAN v. BATES.

(Supreme Court, Appellate Division, First Department.

November 2, 1910.)

Headnote

Elections (§ 131^[1] )—Primary Conventions—Conditions Precedent to Holding.

Under Election Law (Laws 1909, c. 22 [Consol. Laws, c. 17]) § 3, providing that the custodian of the records of a primary election shall canvass the statements filed with him as to the result of the election and prepare a list of the delegates to the convention, which shall be delivered to its secretary, such canvass and the preparation and delivery of such-list are conditions precedent to the organization of the convention, only-such persons as are determined to be delegates by the list having authority to organize.

[Ed. Note.—For other cases, see Elections, Dec. Dig. § 131.*]

Appeal from Special Term, New York County.

Proceeding by Harold J. Friedman against Lindon Bates, Jr. On appeal from an order of the Special Term, reversing the determination of the Board of Elections refusing to sustain the objection to the certificate of nomination of said Bates as member of the Assembly.

Affirmed.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARICE, SCOTT, and MILLER, JJ.

Elihu Root, Jr., and Abm. G. Meyer, for appellant.

A. W. Stump, for respondent.

Section 3 of the election law (being chapter 22 of the Laws of 1909 [Consol. Laws, c. 17]) expressly provide that the custodian of primary records shall canvass the statements filed with him as the result of the primary election, and shall thereupon prepare certified statements of the result of the primary elections of each party participating therein, and shall make up the rolls of the conventions for which delegates were elected at such primary elections, and shall promptly mail and, if requested, deliver one copy thereof to the respective secretaries of the proper political committees of the several parties participating in such primary election. It was also made the duty of the custodian of primary records to prepare a certified transcript of such statement and deliver the same to any individual or political committee on payment of the fees prescribed therefor. He is also required to deliver upon demand to a person who by the statement so filed and canvassed is shown to have been elected as delegate to a convention a certificate of his election, and such certificate shall be sufficient to entitle the person named therein to be admitted to the convention to which he has been elected. And section 67 of the act provides that the person selected to call the convention to order is to have the custody of the roll of the convention until it shall have .been organized.

It is thus by the statute made a condition of the assemblage of a convention elected at a primary election that the result of the election shall be canvassed by the custodian of primary records, who shall as

p. 260

a result of that canvass prepare a list of those elected delegates to the convention, which is to be delivered to the secretary of the political committee of the party participating in such primary» election, and that list, so prepared, is the roll of the convention. Until such a canvass is had, and such a roll prepared and delivered, there can be no convention organized under the statute; and it is only the members who are thus determined to be delegates to the convention who can organize the convention. Matter of Thomas, 128 App. Div. 330 , 112 N. Y. Supp. 664 ; Matter of Byrne, 128 App. Div. 334 , 112 N. Y. Supp. 699 . It is conceded that the members of the convention, who met and made the nomination to which objection is made, were not 'the persons certified by the custodian of primary records as the persons elected as delegates to this convention. It follows that the nomination made by this body was not a regular nomination, entitling it to go upon the official ballot.

The order should be affirmed.