McNaboe v. Cohen

259 A.D. 216, 18 N.Y.S.2d 617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1940
• Status: Published

Opinion

Per Curiam.

Concededly, section 21 of the Election Law contains no provision with respect to party enrollment or residence. In view of the fact that sections 11 and 12 of the same law relating to State and county committees, respectively, have specific reference both to enrollment and residence, and since a like situation prevails in the rules of the party to which the petitioners belong, we are of opinion that the failure of section 21 to mention enrollment or residence precludes any specific application of such to any candidate for an election as a delegate or alternate to the party national convention.

The Election Law has many times been amended without a change in the provisions of section 21 in the respect noted. The omission of an enrollment or residence requirement, therefore, may not be deemed to have been inadvertent.

With the wisdom of the law as constituted or the desirability of an amendment in either respect, the courts are not concerned. It is a matter for the Legislature so far as the Election Law is involved.

It follows, therefore, that the orders appealed from should be reversed, the applications of James H. Fay and Michael Donnelly denied, and the applications of John J. McNaboe and Alfred E. Smith, Jr., granted.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

In the McNaboe proceeding: Order unanimously reversed, without costs, and motion granted.

In the Smith’, Jr., proceeding: Order unanimously reversed, without costs, and motion granted.

In the Fay proceeding: Order unanimously reversed, without costs, and motion denied.

In the Donnelly proceeding: Order unanimously reversed, without costs, and motion denied.