People ex rel. McGrath v. Dooling

Appellate Division of the Supreme Court of New York

People ex rel. McGrath v. Dooling

141 A.D. 29, 127 N.Y.S. 748, 1910 N.Y. App. Div. LEXIS 3796

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

DecidedNovember 3, 1910

StatusPublished

This text of 141 A.D. 29 (People ex rel. McGrath v. Dooling) 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.

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People ex rel. McGrath v. Dooling, 141 A.D. 29, 127 N.Y.S. 748, 1910 N.Y. App. Div. LEXIS 3796 (N.Y. Ct. App. 1910).

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Opinion

Per Curiam:

After the decision of the Special Term in the Haugh case on' October 26, 1910,- the delegates elected to the Assembly convention again assembled, William J. Smith, the person designated to call the convention to order, was- present, and called it to order, the choice of a temporary chairman was made upon proper roll call, and the convention took such action as resulted in the nomination of Joseph A. Yan Wyrien for the office of Assemblyman in question. . The' certificate of such nomination was presented to the board of eléetions, who refused to receive the- same upon the. ground that the time for filing certificates of original party nominations had expired on October fourteenth.- (Election Law [Consol. Laws, chap. 17;. Laws of 1909, .chap. 22], § 128.) This proceeding was brought to obtain a peremptory writ of mandamus to compel the said board to accept such certificate of nomination, and for such other and further relief as might lié just. The motion was denied at the Special Term, and from the order entered on such decision this appeal is taken.

In view of our decision in. Matter of Haugh (141 App. Div. 26), decided herewith, it is unnecessary for us to consider whether, if the original action of. the convention had been-invalid, its subsequent action could be sustained. As the original certificate of nomination . has been held to be valid, it is not necessary to require the board of elections to accept, the second certificate,if we had the power to do -.so. The application, therefore, for so much of the relief prayed for may be .denied.

To save any possible question, however, we have concluded, to direct that a mandamus issue requiring the board of elections to .print upon the official ballot the name of Joseph A. Yan Wynen [31]*31as the candidate of the Republican party for the office of Assemblyman in the eighth Assembly district in the county of Kings.

The order appealed from should be thus modified, and as so modified affirmed, without costs. '

Jenks, Burr, Thomas and Carr, JJ., concurred.

Order modified so as to direct that a mandamus issue requiring the board of elections to print upon the official ballot the name of Joseph A. Van Wynen as the candidate of the Republican party, and as so modified affirmed, without cost's.

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Per Curiam:

After the decision of the Special Term in the Haugh case on' October 26, 1910,- the delegates elected to the Assembly convention again assembled, William J. Smith, the person designated to call the convention to order, was- present, and called it to order, the choice of a temporary chairman was made upon proper roll call, and the convention took such action as resulted in the nomination of Joseph A. Yan Wyrien for the office of Assemblyman in question. . The' certificate of such nomination was presented to the board of eléetions, who refused to receive the- same upon the. ground that the time for filing certificates of original party nominations had expired on October fourteenth.- (Election Law [Consol. Laws, chap. 17;. Laws of 1909, .chap. 22], § 128.) This proceeding was brought to obtain a peremptory writ of mandamus to compel the said board to accept such certificate of nomination, and for such other and further relief as might lié just. The motion was denied at the Special Term, and from the order entered on such decision this appeal is taken.

In view of our decision in. Matter of Haugh (141 App. Div. 26), decided herewith, it is unnecessary for us to consider whether, if the original action of. the convention had been-invalid, its subsequent action could be sustained. As the original certificate of nomination . has been held to be valid, it is not necessary to require the board of elections to accept, the second certificate,if we had the power to do -.so. The application, therefore, for so much of the relief prayed for may be .denied.

To save any possible question, however, we have concluded, to direct that a mandamus issue requiring the board of elections to .print upon the official ballot the name of Joseph A. Yan Wynen [31]*31as the candidate of the Republican party for the office of Assemblyman in the eighth Assembly district in the county of Kings.

The order appealed from should be thus modified, and as so modified affirmed, without costs. '

Jenks, Burr, Thomas and Carr, JJ., concurred.

Order modified so as to direct that a mandamus issue requiring the board of elections to print upon the official ballot the name of Joseph A. Van Wynen as the candidate of the Republican party, and as so modified affirmed, without cost's.

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141 A.D. 29, 127 N.Y.S. 748, 1910 N.Y. App. Div. LEXIS 3796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-mcgrath-v-dooling-nyappdiv-1910.

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