voter's residence or the district for which the officer is to be chosen. Matter of Sheridan (1907), 57 Misc. 42, 107 N. Y. Supp. 244. Mandamus to determine qualifications.

See Matter of Guess (1896), 16

Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

When an applicant has been refused enrollment as a qualified voter at a party's primaries, an alternative writ of mandamus will issue to try his qualifications as a party voter. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

It may well be doubted whether the condition of a voter's qualification to vote at a party primary, that he shall have voted the ticket of such party at the last election, is reasonable or lawful. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

It is the legal right of a party voter to vote at the primaries of his party, and the question whether an applicant is entitled to be enrolled and to vote at the primaries, does not depend upon the discretion, nor upon the decision of the enrolling committee, but upon the fact of whether he possesses the requirements. Matter of Guess (1896), 16 Misc. 306, 74 N. Y. St. Rep. 387, 38 N. Y. Supp. 91.

The qualification and limitation “duly enrolled" applies only to the election district in which the voter is enrolled and upon the enrollment book of which his name appears. Matter of Steinbrink v. Lloyd (1915), 169 App. Div. 354, 154 N. Y. Supp. 870.

§ 72. Challenges at official primary elections.

The right of an enrolled voter to participate in any official primary election shall be subject to challenge at any time before his ballot is deposited in the ballot box. When any enrolled voter shall be challenged, the chairman, or one of the members, of said board, shall forthwith put to him an oath or affirmation to answer truly such questions as shall be put to him, and he shall be allowed to vote if, and only if, he shall make such oath or affirmation, and shall answer in the affirmative each of the following questions: "Are you (using the name which he has given as his name)? Do you reside, and have you, for thirty days last past, resided at (giving the address which he has given as his resi

dence) ? "

...

Derivation: Formerly § 57. Renumbered by L. 1911, ch. 891, § 33, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 7, subd. 2.

Purpose of oath.-A voter who has enrolled in an election district and subsequently moved his residence into another district, in which he is not enrolled, is not entitled to vote at the primary election in the district to which he has removed, even though his name has not been stricken from the enrollment list, and he cannot compel the board of inspectors to receive his ballot by taking the oath provided for in this section. The oath provided is a means of identifying only a voter who is enrolled in the election district in which he seeks to vote. Matter of Steinbrink v. Lloyd (1915), 169 App. Div. 354, 154 N. Y. Supp. 870. Report of Attorney-General, Sept. 23, 1915.

§ 73. Expense of official primaries.

The expense of official primary elections, including the expense of preparing and copying new enrollment books and the compensation herein provided to be paid to primary election officers, shall be paid by the same officers or boards and in the same manner, as the expenses of general elections. If provision shall not have been made for the payment of such expense in any year, then the officers who are empowered by law to make such provision in any county, city, town or other

political subdivision of the state, are hereby authorized and directed to raise money to such an amount as may be necessary, in any manner provided by law for meeting expenses in anticipation of the collection of taxes and to pay such expense therefrom. The amount so raised shall be included in the amount to be raised by tax in the ensuing year. Derivation: Formerly § 47. Renumbered and amended by L. 1911, ch. 891; § 34, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 4, pt. of subd. 2, as amended by L. 1900, ch. 506, § 1; L. 1901, ch. 360, § 1.

§ 74. Primary districts, officers and polling places.

The custodian of primary records shall thirty days before each official primary day, divide every ward in a city, except a city of over four hundred thousand inhabitants, and divide every village having five thousand inhabitants or more, into primary districts, each of which shall consist of two contiguous election districts, except that in case there is an odd number of election districts in such ward or village, the highest numbered election district shall be a primary district by itself. In each of such primary districts, except where an election district shall be a primary district by itself, there shall be two polling places. Such polling places shall be designated and provided. at public expense by the officers or boards whose duty it is to provide polling places for days of general election, and shall be, so far as they are available, the same places as were used for the last preceding general election. The custodian of primary records shall assign one of the polling places in each such primary district to the party which, at the last election of governor, cast the highest number of votes for governor, and at the other polling place in such primary district there shall be held the primary elections of all other parties. In all other villages and towns, and in each city having over four hundred thousand inhabitants, each election district shall constitute a primary district. In a city, town or village in which each or any election district constitutes a primary district there shall be for each such primary district primary election officers, who shall consist of the election inspectors for the election district comprising such primary district and such inspectors shall be the board of primary inspectors. In a city or village having more than five thousand inhabitants, except a city having over four hundred thousand inhabitants, there shall be for each primary district having two polling places two groups of primary election officers, one of which shall consist of the election inspectors for the election districts comprised within such primary district who shall at the time represent the party which at the last preceding election of a governor shall have cast the largest number of votes for governor, and the other of which shall consist of the election inspectors who

shall represent the party which, at such election, shall have cast the second largest number of votes for governor. The first mentioned officers shall conduct the primary election of the party represented by them and the second mentioned officers shall conduct the primary elections of all other parties at the time entitled to hold primary elections. The election inspectors belonging to each such group of primary officers shall be the board of primary inspectors.

In a city, town or village in which each or any election district constitutes a primary district the polling place in each such primary district shall be designated and provided at public expense by the officers or boards whose duty it is to provide the polling places for the general election, and, where practicable, it shall also be the same place that was used at the last preceding general election, unless, in a city having over one million inhabitants, the primary polls be placed in a school or other public building as provided in section two hundred and ninety-nine.

Derivation: Formerly § 48. Renumbered and amended by L. 1911, ch. 891; amended by L. 1913, ch. 820; L. 1915, ch. 678; L. 1916, ch. 537; L. 1917, ch. 703, in effect June 1, 1917. Originally revised from Primary Election Law, § 4, subd. 3.

§ 75. Notice of official primaries.

At least thirty-five days before each official primary day the chairman of the general committee of each party subject to the provisions of this article, shall certify and deliver to the custodian of primary records a statement of the committees and offices for which members or candidates as the case may be, are to be elected or nominated thereat, and the number of members of committees, to be elected in each unit of representation. If delegates and alternates to a national party convention are to be chosen at the primary, such statement shall certify the number to be elected in each unit of representation. The custodian of primary records shall prepare a notice of each official primary election provided for by this article, and shall publish such notice, not more than thirty-five days and not less than thirty days prior to such primary election, in at least one newspaper having a general circulation in the city or village, of the political faith of each of the two parties which, at the last preceding election of a governor, cast the highest and next highest number of votes for governor. Such notice shall specify the day of such primary election, the hours during which it will be held, the location of each such polling place, the election districts whose voters may vote at each such polling place, the name of the party or parties whose primary elections will be held thereat, and the national party conventions, party committees or public offices

for which delegates, members or candidates, as the case may be, will be chosen thereat.

Derivation: Formerly § 49. Renumbered and amended by L. 1911, ch. 891; amended by L. 1913, ch. 820, in effect Dec. 17, 1913. Originally revised from Primary Election Law, § 4, subd. 4, as amended by L. 1908, ch. 463, § 1.

Unit of representation.-Where the certificate, required by subdivision 4 of section 4 (now Election Law, § 49), is delivered to the custodian of primary records and the unit of representation established by the party is the assembly district, by reason whereof members of the party might vote for delegates to certain conventions which would nominate candidates for office for whom they could not vote at the general election, the districts for which such officers were to be elected not being coterminous with the assembly districts, the board of elections is not justified for that reason in rejecting the certificate and refusing to publish a call or notice pursuant thereto. Matter of Sheridan (1907), 57 Misc. 42, 107 N. Y. Supp. 244.

The party may lawfully establish the assembly district as the unit of repre. sentation, though such unit may not be the fairest possible unit of representation that could be established. Matter of Sheridan (1907), 57 Misc. 42, 107 N. Y. Supp. 244.

A statement filed pursuant to this section which shows that in one assembly district, consisting of three aldermanic districts, the electors of the entire assembly district were to participate in the election of all the delegates to the aldermanic convention does not conform to the statute, and violates article 2 of the rules and regulations of the Democratic party for the county of New York; and also section 53 (now § 5) of the Election Law. Matter of Murphy (1908), 126 App. Div. 58, 110 N. Y. Supp. 1020.

The term "general committee," as used in section 10, is made by the amendment of 1901 to mean the general city committee, and the requirements contained in this section, that the chairman of the general committee of each party shall file with the custodian of primary records a statement of the number of delegates to be selected to conventions, mean the chairman of both the general county committee and the chairman of the general city committee. Matter of Wallace (1901), 36 Misc. 1, 72 N. Y. Supp. 445.

§ 76. Restrictions as to place of primaries.

No primary election shall be held in a saloon or drinking place, or in a room which is more than one flight of stairs from the street or not readily accessible from the street.

Derivation: Formerly § 51. Renumbered by L. 1911, ch. 891, § 37, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 4, pt. of subd. 5.

§ 77. Removals from, and filling vacancies in, boards of primary election officers.

Removals from boards of primary election officers shall be made, and vacancies occurring in such boards shall be filled, in the same manner as is provided in this chapter for making removals from boards of election officers and for filling vacancies therein on a day of registration.

Derivation: Added by L. 1911, ch. 891, § 38, in effect Nov. 15, 1911.

$78. Primary poll-clerks and poll-books, in primary districts outside of cities of over one million inhabitants. The provisions of this section shall apply only to primary districts outside of a city having over one million inhabitants.

Each primary poll-clerk at each polling place at an official pri mary election shall have a poll-book for each party in each elec

tion district within the primary district for keeping the list of enrolled voters voting, or offering to vote thereat at the primary election. Each such book shall have columns headed respectively "Number of enrolled voter," "Name of enrolled voter," "Residence of enrolled voter," "Number on ballots delivered to enrolled voter," "Number on ballot voted," and "Remarks."

Upon each delivery of an official primary ballot by the primary ballot clerk to an enrolled voter, the primary poll-clerk shall enter upon the poll-book of the election district in which the enrolled voter resides, in the appropriate column, the number of the enrolled voter, in the successive order of the delivery of the ballots thereto, the name of the enrolled voter in the alphabetical order of the first letter of his surname, his residence by street and number, or if he have no street number, a brief description of the locality thereof, the printed number upon the stub of the ballots delivered to such enrolled voter, and the number of the ballot voted by him. If the ballot delivered to any enrolled voter shall be returned by him to the primary ballot clerk, and he shall obtain a new ballot, the primary poll-clerk shall write opposite his name on the poll-book in the proper column, the printed number of the stub of such ballot. Each primary poll-clerk shall make a memorandum upon his poll-book opposite the name of each person who shall have been challenged and taken either of the oaths prescribed upon such challenge, or who shall have received assistance in preparing his ballot and shall also enter upon the pollbook opposite the name of such person the names of the primary. officers or persons who render such assistance, and the cause or reason assigned for such assistance by the elector assisted.

As each enrolled voter offers the ballot which he intends to vote to the primary inspector, each primary poll-clerk shall report to the primary officers whether the number entered on the poll-book kept by him as the number on the ballot last delivered to such enrolled voter is the same as the number on the stub of the ballot so offered. As each enrolled voter votes, each primary poll-clerk shall enter in the proper column on his poll-book the number on the stub of the ballot voted. Upon the close of the polls of the primary election, the primary poll-clerks and all primary officers shall compare the poll-books with the enrollment books or registers and correct any mistakes found therein.

Derivation: Added by L. 1911, ch. 891, § 39; and amended by L. 1915, ch. 678, in effect May 22, 1915.

§ 78-a. Primary poll clerks and poll-books in cities of over one million inhabitants.

1. The provisions of this section shall apply only to primary districts within a city having over one million inhabitants.

2. In every such city each primary poll-clerk at each polling place at an official primary election shall have a poll-book for