42

§ 56

primary election, or of the secretary of state in preparing and certifying the list of members of a state committee, may be reviewed in like manner by the supreme court, or a justice thereof, which by order may make any change in the result of such primary election as certified to by the custodian of primary records, or any change or alteration in the list of members of a state committee prepared by the secretary of state, as justice may require. The change or alteration so made, if the result is as to the nomination of a candidate for an elective office, the name of the person so adjudged to have been duly nominated in accordance with the provisions of this chapter at such primary for such elective office shall be placed upon the official ballot as the candidate for the party holding such primary. Proceedings taken under this article shall have precedence and priority over all other actions and proceedings in the supreme court or before a justice thereof. court, or a justice thereof, upon such proceeding, shall have the The right to subpoena and examine witnesses, or in its discretion to hear and determine the case upon affidavits. In case the court or a justice thereof should find and determine that both parties to the controversy had been guilty of frauds or that the primary has been so permeated by fraud as to render it impossible for him to determine the true result of such primary and who was elected thereat, such court or justice shall have the right to direct the holding of a new primary at the same place and in the same manner as the regular official primary. The court, or justice thereof, in case of ordering a new primary, may include in such order directions for the canvassing of the vote of such new primary.

Added by L. 1911, ch. 891, and amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

Judicial review. This subject was covered in old § 70 of the Election Law, which was repealed by L. 1911, ch. 891. given in the 1911 Manual under § 70, is given here for whatever historical or The following note, which was other value it may have:

Legal proceedings against officers of conventions, etc. The provisions of law relating to actions and special proceedings against unincorporated associations are applicable to political parties and to their respective conventions and committees, and they may be brought into court by actions against officers as prescribed in section 1919 of the Code of Civil Procedure. v. Cole (1907), 54 Misc. 278, 109 N. Y. Supp. 109. Brown

Power of court. The Supreme Court may set aside the statement of a canvass of votes cast at a primary election fraudulently made by a board of inspectors, adjudge the true result, and direct the board to reconvene and make and file a statement of the result as so adjudged, and direct the issue of certificates of election to the candidates lawfully elected. v. Garuad (1903), 89 App. Div. 119, 85 N. Y. Supp. 473. Matter of Rabbitt

This section does not allow the striking from the official ballot the names of candidates for office because of errors and omissions in the party proceed ings preliminary to their nomination, but is limited to corrections of errors and omissions in the primary proceedings, and does not extend to the correction of ballots. Matter of Cragg (1907), 121 App. Div. 921.

In the city of New York the enrollment books, as made up under the Primary Election Law of 1899 from the enrollments made on the four regular registration days for a general election. must stand for one year and cannot

be amended or changed by judicial action, although in the meantime an enrolled voter may have died or moved out of the election district in which he had enrolled. People ex rel. Moscowitz v. Voorhis (1903), 41 Misc. 360, 84 N. Y. Supp. 848, 14 N. Y. Ann. Cas. 15.

This section confers on the court broad summary power to correct fraudulent practices and to compel fair conduct at primary elections, and the court in a proper case has power to set aside summarily a fraudulent primary election and to order a new election, but the exercise of the power rests in its sound discretion and it will not act to correct illegalities in a primary election where the only effect thereof was to increase the majority of a candidate who would have been elected irrespective of the fraud. Matter of Coughlin (1910), 137 App. Div. 283, 121 N. Y. Supp. 980, aff'd 198 N. Y. 613.

The power given to the courts by this section to review any action or neglect of officers, committeemen or board by mandamus, certiorari or summary jurisdiction, is confined to such matters as were within the jurisdiction of the board whose action is being reviewed. Matter of Hines (1910), 141 App. Div. 569.

The court will not interfere with an election because of alleged void ballots not changing result. Matter of Hines (1910), 141 App. Div. 569.

A justice of the Supreme Court has no power, in a proceeding to review the action of inspectors of a primary election under this section, to enjoin a person to whom certificate of election to the county committee of a political party has been issued, from participating in the meetings of the committee. The court possesses and should attempt to exercise only such power to interfere with the conduct of primary elections as is conferred by statute. Matter of Holle (1914), 160 App. Div. 369.

While in a summary proceeding under this section to review the action of any custodian of primary records in canvassing and certifying the result of a primary election the court may make any change in the result of such primary election as certified to by the custodian of primary records, it will not interfere until it is shown that the action of the custodian in canvassing and certifying the result is fraudulent, erroneous or in violation of some duty or responsibility imposed by law. It seems that the proper proceeding for petitioner to try out his title to the office would be by an appropriate action, the statute providing as a preliminary thereto for an examination of the ballots cast, if so desired. Matter of Sherman (1915), 92 Misc. 589. A justice of the Supreme Court sitting in chambers cannot review the action or alleged neglect of the mayor of a city in appointing certain election officers in such city under the authority granted by the above section. The designation of election officers is in accordance with section 12 (now § 303) of the Election Law, and the summary jurisdiction given to justices in the above section only relates to the review of the action or neglect of a public officer or board with regard to a right given or duty prescribed by the Primary Election Law. Matter of McShane v. Murphy (1902), 86 App. Div. 566, 83 N. Y. Supp. 1018.

Mandamus to compel recognition as member of committee. — An appli cation for a peremptory writ of mandamus to compel the general committee of a county to recognize the relator as a member, and also to recognize as a member of the executive committee the person chosen by the relator and his associates, is properly denied, where the relator has not been denied his rights as a member of the general committee, the person chosen is not named, no demand is made that any special person should be recognized, and no one has made any demand for such recognition. People ex rel. Garvey v. Democratic Committee (1903), 175 N. Y. 415, aff'g 82 App. Div. 173, 88 N. Y. Supp. 784. Correction of mistakes. This section cannot be invoked to relieve an elector from consequences of his own action or neglect. People ex rel. Smith v. York (1901), 34 Misc. 120, 68 N. Y. Supp. 741.

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An elector who, by mistake, wrote his name in the wrong party column, when enrolling for the primaries, is not entitled, under this section, to an order requiring the police board to correct the mistake. People ex rel. Smith v. York (1901), 34 Misc. 120, 68 N. Y. Supp. 741.

Review of action of custodian of primary records. The duty imposed upon a custodian of primary records to deliver a certificate of nomination to the person who is shown to have been nominated by the statement filed in his office is ministerial and not judicial. He cannot receive or act upon evidence tending to explain, vary or contradict such statement. The court cannot, in proceedings brought under the above section to review the action of the custodian in respect to such certificate, receive or consider such evidence. People ex rel. Calihan v. Hunt (1902), 75 App. Div. 33, 77 N. Y. Supp. 973. Process, on whom should be served. Matter of Hines (1910), 141 App. Div. 569.

Mandamus does not lie to compel the board of elections of the city of New York to enroll a voter in the Republican party where through his own mistake he unintentionally placed his mark in the Democratic circle on the enrollment blank. Matter of Jackson v. Britt (1911), 147 App. Div. 87, 131 N. Y. Supp. 877.

Application of section. Matter of Joslin (1911), 73 Misc. 354, 132 N. Y. Supp. 416. This section applies only to the official acts of the board and to matters of which it has jurisdiction. It gives the court no power to correct mistakes made by the electors themselves. Matter of King (1913), 155 App. Div. 720.

The court possesses and should attempt to exercise only such power to interfere with the conduct of primary elections as is conferred by statute. Schieffelin v. Britt (1912), 150 App. Div. 568. Affirmed 206 N. Y. 677.

The right of review given by this section is summary and the section should not be so construed as to render it ineffectual. Matter of Trombley (1912), 150 App. Div. 415; appeal dismissed, 206 N. Y. 632.

Limitation on power of court. This section confers power to entertain summary proceedings upon the specified courts only in cases of erroneous action on the part of the public officials therein specified. It does not give power to the courts to correct mistakes made by the elector himself. Matter of Jackson v. Britt (1911), 147 App. Div. 87, 131 N. Y. Supp. 877.

Primary elections; cancellation of certificate of nomination. - Petition asking the cancellation of a certificate of nomination issued by the Secretary of State, showing the nomination of one B. by the Socialist party as justice of the Supreme Court. Said B. was not a member of the Socialist party and two of the six votes cast for him bore the name of his son, a law student. On the contrary, one S., a member of the Socialist party, received five votes. Held, that the plurality of votes cast for the office of justice of the Supreme Court at said election were cast for S. and that the certificate showing the nomination of B. should be canceled. Matter of Sweeney (1913), 158 App. Div. 496.

Alteration of primary election returns.— -The power of review vested in the court under this section does not authorize an alteration of the return of the inspectors of a primary election where, except in a single trifling particular, it is in accord with the votes cast. Matter of Zimmer (1912), 76 Misc. 320.

When review premature. The power of the court under this section, which must be strictly construed, does not extend to the review of threatened acts, and while the court may make any change in the result of a primary election as certified to by the custodian of primary records, a proceeding against him under this section before a certificate of election has been issued is premature. Matter of Zimmer (1912), 76 Misc. 320.

Counting ballots for candidate variously named. Where it appears from the primary record that every ballot cast for the petitioner who was variously named upon the ballot had been counted for him he would have been elected, the supreme court under this section may declare his election. Matter of Zimmer (1912), 77

Misc. 330.

Neglect of inspectors of primary elections. The action or neglect of inspectors of primary elections in the performance of their duties, as prescribed in article 4-a of the Election Law, is subject to review under this section. Matter of Ward (1912), 78 Misc. 15.

Opening of ballot boxes and enrollment books examined. — Where it is probable that occurrences in relation to the statement of the result of the canvass of the vote for senator were due to ignorance and neglect in the performance of duty by certain of the inspectors of primary election, the court will order the ballot boxes opened, the enrollment books examined, the true result adjudged, the boards of inspectors of election to reconvene and make and file a statement of said result and a certificate issued to the candidate lawfully elected. Matter of Ward (1912),

78 Misc. 15.

Recount unauthorized. — In a proceeding under sections 41, 56 to review the actions of custodians of primary records the court can review only such action as the custodians themselves have taken and correct errors which they have made. The statute does not authorize a recount of the votes and a declaration of a different result based upon such recount. Matter of Tenjost (1915), 169 App. Div. 300, 154 N. Y. Supp. 708.

The removal of the chairman of a county committee and the election of a successor by the members of the committee do not come within the provisions of this section, and the court is without jurisdiction to review the proceedings of the committee. Matter of Ganley (1915), 90 Misc. 445, 154 N. Y. Supp. 773.

Review of primary election; powers of court. But where the inspectors of election have been made parties to the proceeding, the court has power to order the custodians of primary election records to produce ballots cast for rival candidates for the position of state committeeman for examination and recanvass, if the correctness of the original canvass has been challenged, and may provide that the rival candidates may be present in person and by counsel, and that examination shall be made in the presence of the custodians of the records, or employees of their department designated by them, and that the election inspectors may likewise be present in person or by counsel.

It is not necessary that a separate proceeding be taken against the officers of each election district, but there may be one proceeding against all the officers of the several districts, where each contributed to a rsult alleged to be incorrect. Matter of Tenjost (1916), 171 App. Div. 129.

§ 57. Emblems.

Added by L. 1911, ch. 891, and repealed by L. 1913, ch. 820, in effect Dec. 17, 1913.

$58. Official primary ballot.

There shall be prepared, printed and supplied in the manner hereinafter provided, for use at official primary elections, official primary ballots, and except as otherwise expressly provided in this chapter, no other ballot shall be used at an official primary election.

No names of candidates for any nomination to public office or election to a party position shall be printed upon the official primary ballot, except upon designation duly made as prescribed in this chapter; nor shall any names, words, or signs, or writing whatever be printed, written, stamped or in any manner`placed upon an official primary ballot except as herein provided.

The official primary ballots shall conform in quality, weight, and style of printing, to the ballots prescribed in this chapter for use at the general election, excepting that the title of the party position or office shall be printed in a space three-eighths of an inch in depth, and the name of the candidate therefor shall be printed in a space one-fourth of an inch in depth, instead of one-half inch. The ballots of no two parties shall be of the same color. The secretary of state shall designate the color of ballots for each party. The ballot shall be printed upon the same leaf with the stub and separated therefrom by a perforated line. The part above the perforated line, designated as the stub, shall extend the entire width of the ballot, and shall be of sufficient depth to allow the following instructions to voters to be printed on the face thereof in type known as brevier, with the word "Instructions" in larger type above:

"This ballet must be marked with a pencil having black lead. To vote for any candidate whose name is printed on this ballot make a cross X mark in the voting space at the left of the name. To vote for any person whose name is not printed on this ballot write the name of such person in the blank space provided for that purpose under the title of the public office or party position to which you wish him nominated or elected. Any other mark than the cross mark used for the purpose of voting, or any erasure made on this ballot, makes it void, and it cannot be counted as a vote for any candidate. If you tear or deface or wrongly mark this ballot, return it and obtain another, but only one additional ballot may be thus obtained."

Upon the face of the ballot and directly below the perforated line shall be printed the following: "Official ballot for the primary election of the (name of party) party," the name of the county and town or city; the date on which such primary is held; the party emblem; the assembly district number, number of the ward, (in any city divided into wards), and the election district number, directly below which shall be printed a heavy black horizontal line.

The face of the ballot below the perforated line shall be divided into two parts by a heavy black vertical line one-fourth of an inch in width. Immediately below the perforated line in the center of the space at the left of said vertical line shall be printed the caption "Candidates for nomination for public office." Under said caption the names of candidates for nomination for public office shall be printed under the titles of the respective offices for which they are candidates respectively, in capital letters in blackfaced type not less than one-eighth nor more than three-sixteenths of an inch in height, so that the names of all candidates for nomination for an office shall be printed under the title of said office, and so that the said offices shall appear in the same consecutive order in which they appear upon the official ballot for the general election. Immediately below the title of each public office shall be printed in brevier lower case type a direction to the voters as to the number of persons to be voted for, in the following words: "Vote for .... ." (the blank space being filled with the number of persons to be nominated for said office at the official primary election). Immediately below this division and separated therefrom by a horizontal line shall be printed the name or names of candidates duly designated for such office. The order in which the names of candidates shall appear under the title of an office shall be determined by the board or officer with whom designations are filed by lot in the presence of the candidates or their representatives if present, and other persons required to be notified. At least two days' notice by mail shall be given to all candidates whose names appear on designating petitions and to the members of the committees, if any, appointed by such petitions, of the time and place of such determination, except that when any such designating petition is filed with the board of elections of the city of New York such notice shall be given only to the members of the committee, if any, appointed by such petition.

If a vacancy be filled after the position of such names has been determined, the name of the newly designated candidate shall be printed in the order determined for the candidate whose designation was made vacant.

Immediately below the names of all the candidates in the case of each public office there shall be left a blank space or blank spaces equal in number to the number of candidates to be nominated for said office. The voter at the official primary election may write in such blank space or spaces the name of any person or persons for whom he desires to vote whose name or names are not printed upon the ballot. Voting spaces shall be provided at the left of each column opposite the names of candidates in the same manner as provided for on the official ballot for the general election.