In re Fagan

New York Supreme Court

In re Fagan

21 Misc. 403, 47 N.Y.S. 288

CourtNew York Supreme Court

DecidedOctober 15, 1897

StatusPublished

Cited by1 cases

This text of 21 Misc. 403 (In re Fagan) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Fagan, 21 Misc. 403, 47 N.Y.S. 288 (N.Y. Super. Ct. 1897).

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Opinion

Gaynor, J.

Section 57 of the Election Law, which provides for nomination by certificate, was meant to cover all offices and should not be otherwise construed. The only provision of it that .we may try to make literally applicable to the present case is the one requiring that the certificate nominating a candidate to be voted for in a ward only, must be' made by one. hundred or more electors. This would be plainly applicable to aldermen to be elected by the old wards. But under the charter of the new city, the aldermen are not elected from the old wards, but from new districts coterminous with the state assembly districts. In order to determine the number of electors required to nominate an alderman by certificate in such a district, it may be considered as designated by the word “ward” in the Election Law. That word may, according to its derivation and definition, be as aptly used to designate the new aldermanic [404]*404districts as the old ones. This construction would require a certificate of one hundred electors.

But when the offices of, president of the borough and councilman are thought of, and it is, perceived that no provision of the said section 57 literally covers them in the matter of nominating cer- . tificates, it would seem that the number of signing electors requisite in the present case, as well as in respect of them, can be best determined by analogy to the case of other offices to be voted for in the same territory, or in a territory of the same size. For member of the state assembly, a certificate of five hundred, is essential; and the aldermanic district being identical with the assembly district, by analogy a certificate of five hundred would be requisite for the nomination of an alderman. As the present certificate is by that number, of electors it is sufficient.

It would seem very unreasonable to hold,, as the court is asked to hold, that the certificate should be by the number of electora required to nominate to. an office which' has to be voted for by the electors of the whole city, viz., two thousand. That would be contrary to the system of the statute, which grades the number of electors required to a certificate according to the size of the constituency, from state down to town and ward.

The looseness of the statute presents great difficulties, out of which I see no just way other than that of analogy which I have followed. Let the-writ issue.

Ordered accordingly.

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Gaynor, J.

Section 57 of the Election Law, which provides for nomination by certificate, was meant to cover all offices and should not be otherwise construed. The only provision of it that .we may try to make literally applicable to the present case is the one requiring that the certificate nominating a candidate to be voted for in a ward only, must be' made by one. hundred or more electors. This would be plainly applicable to aldermen to be elected by the old wards. But under the charter of the new city, the aldermen are not elected from the old wards, but from new districts coterminous with the state assembly districts. In order to determine the number of electors required to nominate an alderman by certificate in such a district, it may be considered as designated by the word “ward” in the Election Law. That word may, according to its derivation and definition, be as aptly used to designate the new aldermanic [404]*404districts as the old ones. This construction would require a certificate of one hundred electors.

But when the offices of, president of the borough and councilman are thought of, and it is, perceived that no provision of the said section 57 literally covers them in the matter of nominating cer- . tificates, it would seem that the number of signing electors requisite in the present case, as well as in respect of them, can be best determined by analogy to the case of other offices to be voted for in the same territory, or in a territory of the same size. For member of the state assembly, a certificate of five hundred, is essential; and the aldermanic district being identical with the assembly district, by analogy a certificate of five hundred would be requisite for the nomination of an alderman. As the present certificate is by that number, of electors it is sufficient.

It would seem very unreasonable to hold,, as the court is asked to hold, that the certificate should be by the number of electora required to nominate to. an office which' has to be voted for by the electors of the whole city, viz., two thousand. That would be contrary to the system of the statute, which grades the number of electors required to a certificate according to the size of the constituency, from state down to town and ward.

The looseness of the statute presents great difficulties, out of which I see no just way other than that of analogy which I have followed. Let the-writ issue.

Ordered accordingly.

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21 Misc. 403, 47 N.Y.S. 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fagan-nysupct-1897.

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