In re Emmett

Appellate Division of the Supreme Court of New York

In re Emmett

41 N.Y.S. 500, 9 A.D. 237, 75 N.Y. St. Rep. 894

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

DecidedOctober 26, 1896

StatusPublished

This text of 41 N.Y.S. 500 (In re Emmett) 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

In re Emmett, 41 N.Y.S. 500, 9 A.D. 237, 75 N.Y. St. Rep. 894 (N.Y. Ct. App. 1896).

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Opinions

BROWN, P. J.

In this case, which is entitled, “In the Hatter of the Objections to the Certificate of Nomination for Member of Assembly of the Second Assembly District of Westchester County,” the court is of the opinion that it can make no effective order in the case. The statute of 1895 provided that the court could “make such order in the premises as justice may require.” Laws 1895, c. 810, § 56. By the amendment made to the law in 1896 it was further provided that “such order must be made on or before the last day fixed for filing certificates of nominations to fill vacancies with such officer as provided in sub-division one, of section sixty-six of this article.” Laws 1896, c. 909, § 56. That subdivision requires that the certificate of nomination for member of assembly shall be filed with the clerk 15 days before the election, so that, in compliance with that provision of the statute, it is impossible for the court to make any order that would be effective in this matter. The case from the Fourth department, to which our attention was called, was decided under the act of 1895, and has no application to this case. Therefore the appeal that is taken is dismissed. That is the view of three judges of the court. Judge HATCH has dissented from that view, and he has expressed the views that he has taken in a written opinion, which will be filed with the clerk.

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BROWN, P. J.

In this case, which is entitled, “In the Hatter of the Objections to the Certificate of Nomination for Member of Assembly of the Second Assembly District of Westchester County,” the court is of the opinion that it can make no effective order in the case. The statute of 1895 provided that the court could “make such order in the premises as justice may require.” Laws 1895, c. 810, § 56. By the amendment made to the law in 1896 it was further provided that “such order must be made on or before the last day fixed for filing certificates of nominations to fill vacancies with such officer as provided in sub-division one, of section sixty-six of this article.” Laws 1896, c. 909, § 56. That subdivision requires that the certificate of nomination for member of assembly shall be filed with the clerk 15 days before the election, so that, in compliance with that provision of the statute, it is impossible for the court to make any order that would be effective in this matter. The case from the Fourth department, to which our attention was called, was decided under the act of 1895, and has no application to this case. Therefore the appeal that is taken is dismissed. That is the view of three judges of the court. Judge HATCH has dissented from that view, and he has expressed the views that he has taken in a written opinion, which will be filed with the clerk.

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Bluebook (online)

41 N.Y.S. 500, 9 A.D. 237, 75 N.Y. St. Rep. 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-emmett-nyappdiv-1896.

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