Bauman v. Fusco

Appellate Division of the Supreme Court of New York

Bauman v. Fusco

23 A.D.2d 404, 261 N.Y.S.2d 85, 1965 N.Y. App. Div. LEXIS 3625

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 8, 1965

StatusPublished

Cited by6 cases

This text of 23 A.D.2d 404 (Bauman v. Fusco) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bauman v. Fusco, 23 A.D.2d 404, 261 N.Y.S.2d 85, 1965 N.Y. App. Div. LEXIS 3625 (N.Y. Ct. App. 1965).

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Opinions

Per Curiam.

Absent a dissenting opinion herein, we would affirm the order appealed from upon the opinion of Spector, J., [405]*405at Special Term. The dissenting opinion — as do the parties in these cases — acknowledges that the county committee at its organization meeting on June 18, 1964 had the power to adopt a new rule as to the boundaries of the 7th and 12th executive districts. But the appellants would have those rules apply prospectively in 1966 when a new county committee would be elected. It is not disputed that the executive committee of the Bronx County Democratic Committee exists by virtue of the rules of the county committee and is not a creation of the Election Law. (See Matter of McGlynn v. Dixon, 2 N Y 2d 68; Matter of Licitra v. Power, 10 A D 2d 996, 997, affd. 8 N Y 2d 871.)

Justice Steuer would require that if there is to be a change by the county committee in the boundaries of the 7th and 12th executive districts, all the qualified voters in those districts should “have the opportunity to express their preference at the polls ”. This would call for a new election of county committeemen from the 7th and 12th Assembly Districts.

Such a solution must be rejected. Primarily, appellants eschew any such proposed relief. What appellants seek — which not even the dissent will permit — are new elections of executive committee members from the 7th executive district east and the 12th executive district west in accordance with the rules that existed on June 2, 1964 when the primary for the election of county committeemen was held. In short, what is sought is an election on the basis of the old county committee rules. Implicit in Justice Steuer’s dissent is that such relief cannot be granted, for the reason that any action subsequent to the advent of the new county committee must conform to the rules of the new county committee. With this proposition, we, of course, agree.

Secondly, the dissent, in suggesting a new election, predicates the necessity therefor on the untenable premise that when ‘ ‘ the new district was created, there were no county committeemen for that district ’ ’. But under subdivision 1 of section 12 of the Election Law, the county committee of each party “ shall be constituted by the election in each election district within such county of at least two members ”. Thus, county committeemen are elected from election districts and not from executive districts. The validity of the election of the county committeemen from their respective election districts on June 8, 1964 is not challenged. Subsequent grouping of county committeemen into executive districts is a matter of party machinery wholly within the power and province of the county committee.

[406]*406The orders should therefore be affirmed, without costs or disbursements.

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Per Curiam.

Absent a dissenting opinion herein, we would affirm the order appealed from upon the opinion of Spector, J., [405]*405at Special Term. The dissenting opinion — as do the parties in these cases — acknowledges that the county committee at its organization meeting on June 18, 1964 had the power to adopt a new rule as to the boundaries of the 7th and 12th executive districts. But the appellants would have those rules apply prospectively in 1966 when a new county committee would be elected. It is not disputed that the executive committee of the Bronx County Democratic Committee exists by virtue of the rules of the county committee and is not a creation of the Election Law. (See Matter of McGlynn v. Dixon, 2 N Y 2d 68; Matter of Licitra v. Power, 10 A D 2d 996, 997, affd. 8 N Y 2d 871.)

Justice Steuer would require that if there is to be a change by the county committee in the boundaries of the 7th and 12th executive districts, all the qualified voters in those districts should “have the opportunity to express their preference at the polls ”. This would call for a new election of county committeemen from the 7th and 12th Assembly Districts.

Such a solution must be rejected. Primarily, appellants eschew any such proposed relief. What appellants seek — which not even the dissent will permit — are new elections of executive committee members from the 7th executive district east and the 12th executive district west in accordance with the rules that existed on June 2, 1964 when the primary for the election of county committeemen was held. In short, what is sought is an election on the basis of the old county committee rules. Implicit in Justice Steuer’s dissent is that such relief cannot be granted, for the reason that any action subsequent to the advent of the new county committee must conform to the rules of the new county committee. With this proposition, we, of course, agree.

Secondly, the dissent, in suggesting a new election, predicates the necessity therefor on the untenable premise that when ‘ ‘ the new district was created, there were no county committeemen for that district ’ ’. But under subdivision 1 of section 12 of the Election Law, the county committee of each party “ shall be constituted by the election in each election district within such county of at least two members ”. Thus, county committeemen are elected from election districts and not from executive districts. The validity of the election of the county committeemen from their respective election districts on June 8, 1964 is not challenged. Subsequent grouping of county committeemen into executive districts is a matter of party machinery wholly within the power and province of the county committee.

[406]*406The orders should therefore be affirmed, without costs or disbursements.

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Bluebook (online)

23 A.D.2d 404, 261 N.Y.S.2d 85, 1965 N.Y. App. Div. LEXIS 3625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauman-v-fusco-nyappdiv-1965.

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