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for member of assembly for the assembly district composing the counties of Fulton and Hamilton shall be filed in the office of the board of elections of Fulton county, and a copy thereof certified by the board of elections of Fulton county shall be filed in the office of the board of elections of Hamilton county, so long as the said counties constitute one assembly district, and except that such certificates of nomination of candidates for offices to be filled only by the voters or a portion of the voters of the city of New York shall be filed with the board of elections of the city of New York. Such certificates of nomination of candidates for offices to be filled only by the votes of voters, part of whom are of New York city and part of whom are of a county not wholly within the city of New York, shall be filed with the board of elections of such county and in the office of the board of elections of said city. Independent certificates of nomination of candidates for offices of any other city, to be elected at the same time at which a general election is held shall be filed with the board of elections of the county in which such city is located.

2. Independent certificates of nomination of candidates for offices of a city, village or town to be elected at a different time from a general election shall be filed with the clerk of such city, village or town, respectively. In towns in which town meetings are held at the time of general elections, independent certificates of nomination of candidates for town offices shall be in duplicate, one of which shall be filed with the town clerk of the town in which such officers are to be voted for, and the other with the board of elections of the county in which such town is located.

3. All independent or party certificates of nomination, the filing of which is not otherwise provided for in this chapter, shall be filed with the board of elections of the county in which, or in a portion of which, the candidates so nominated are to be voted for.

4. All such filed certificates and corrected certificates of nomination, all objections to such certificates and all declinations of nomination are hereby declared to be public records; and it shall be the duty of every officer or board to exhibit without delay every such paper to any person who shall request to see the same. It shall also be the duty of each such officer or board to keep a book which shall be open to public inspection, in which shall be correctly recorded the names of all candidates nominated by certificates filed in the office of such officer or board or certified thereto, the title of the office for which any such nomination is made, the political or other name and emblem of the party or independent body making such nomination, and in which shall also be stated all declinations of such nominations, or objections to such nominations, and the time of filing each of the said papers.

Derivation: Election Law, § 58, as amended by L. 1897, ch. 379, § 11; L. 1898, ch. 363, § 9; L. 1900, ch. 381, § 3; L. 1901, ch. 95, § 12; L. 1902, ch. 241, § 1; L. 1902, ch. 405, 3; L. 1905, ch. 643, § 10.1

Amended by L. 1911, ch 891; L. 1913, ch. 820; L. 1921, ch. 479, in effect May 2, 1921.

Although the minutes and records of a nominating convention have been filed as required by section 10 of the Primary Election Law (now Election Law, § 67), and show that a person has been nominated, such filing of the minutes is not equivalent to the filing of the certificate required by this section. Matter of Darling (1907), 121 App Div. 656, 106 N. Y. Supp. 430, aff'd 189 N. Y. 570.

As to filing of certificates of nomination, see Report of Atty.-Gen. (1906), 632.

In twenty-third senatorial district, embracing Richmond and Rockland counties, one wholly within and the other wholly without New York city, certificates of senatorial nominations should be filed only with secretary of state. People ex rel. Donegan v. Dooling (1910), 141 App. Div. 31.

§ 128. Times of filing independent certificates and certain other certificates of nomination.

The time or times for filing the following certificates of nomination shall be as follows:

1. Certificates of party nominations made by a state or judicial district convention shall be filed not later than the sixth Tuesday preceding the general election.

2. Independent certificates of nomination, except those for the nomination of candidates for city offices to be filled by an election held at a different time from a general election, and except those for the nomination of candidates for village or town offices, shall be filed not earlier than the sixth Tuesday and not later than the fifth Tuesday before the day of the general election. Independent certificates of nomination of candidates for offices to be filled at a town meeting held at the time of the general election shall be filed not. earlier than the fifth Tuesday and not later than the third Tuesday before the day of election.

3. Independent certificates of nomination of candidates for city, town or village offices to be elected at a different time from a general election shall be filed at least fifteen and not more than thirty days before the day of election.

4. In case of a special election ordered by the governor under the provisions of section two hundred and ninety-two of this chapter, independent certificates of nomination for the office or offices to be filled at such special election shall be filed with the proper officers or boards not less than ten days before such special election.

Derivation: Election Law, § 59, as amended by L. 1897, ch. 379, § 12; L. 1898, ch. 363, § 9; L. 1900, ch. 381, § 3; L. 1901, ch. 95, § 13; L. 1902, ch. 405, § 3; L. 1905, ch. 643, § 11.

Amended by L. 1911, ch. 891; L. 1913, ch. 820; L. 1918, ch. 298; L. 1920, ch. 878; L. 1921, ch. 479, in effect May 2, 1921.

The statutory provision in respect to the time when the certificates of nomination must be filed is mandatory and must be complied with, and after the time has passed a county clerk has no right to receive and file certificates of nominations. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388; Matter of Halpin (1905), 108 App. Div. 271, 95 N. Y. Supp. 611; Matter of McDonald (1898), 25 Misc. 80, 54 N. Y. Supp. 690.

The board of elections of the city of New York has power to act on

certificates of independent nominations filed less than twenty days prior to the election. Matter of Herman (1905), 108 App. Div. 335, 96 N. Y. Supp. 144.

Secretary of state is not bound to receive a certificate of nomination after the date fixed by law for filing it. Report of Atty.-Gen. (1895), 289.

An official ballot is not invalid because it contains the name of a candidate whose certificate of nomination was not filed until after the fixed date. Report of Atty.-Gen. (1895), 293.

When the last day for filing the certificate falls on Sunday it must be filed on the day preceding. Report of Atty.-Gen. (1902), 318.

Where a certificate is mailed to secretary of state so that in ordinary course of mail it would reach him in time, but does not, for unaccountable reasons, the court may relieve from default. Matter of Bayne (1910), 69 Misc. 579.

Strict construction of the section as to party nominations filed, with secretary of state, read in light of section 20 of General Construction Law, requires party nominations to be filed on the Saturday before rather than the Monday following the thirty-day period. Matter of Bayne (1910), 69 Misc. 579.

Ed. Note. The thirtieth day before election always falls on Sunday and this confusion should be prevented by a statutory change.

Where, under strict statutory construction, Saturday, October 8th, was the last day to file party certificates of nomination with secretary of state, but such secretary had compiled and published in his political calendar that Monday, October 10th, was the last day in accordance with the practical construction which had been theretofore followed, a certificate filed on that day should be held filed in time. Matter of Bayne (1910), 69 Misc. 579.

Filing of certificate with county clerk after business hours.-A candidate is entitled to file his certificate of nomination at any hour of the day before midnight on the last day for filing such a certificate, by delivery thereof to the county clerk, and is not required to file the same within the hours provided by statute for keeping the clerk's office open for the transaction of public business. Matter of Norton (1898), 34 App. Div. 79, rev'g 53 N. Y. Supp. 924, appeal dismissed 158 N. Y. 130.

Certificate filed with county clerk at any time on the last day is legal. Report of Atty.-Gen. (1895), 295.

The abstract question of the regularity of filing a certificate of nomination with the county clerk after his office has been closed for the day on the last day of the period allowed by the Election Law, is not of such general interest or importance as to call for a departure from the general practice of the Court of Appeals not to decide abstract questions. Matter of Norton (1899), 158 N. Y. 130.

Power to order certificate filed nunc pro tunc.-A certificate of independent nomination was presented for filing one week after the last day prescribed by law. Held could not be ordered filed nunc pro tunc. Matter of McDonald (1898), 25 Misc. 80, 54 N. Y. Supp. 690.

When court may give relief.-The statutory requirement as to the time when certificates of nomination should be filed is mandatory, yet there may occur accidents and mistakes, causing delay in such filing, and from the effects of which the Supreme Court may give relief, provided it finds that the delay was not due to the negligence of the convention making the nomination, but to the party to whom the filing of the certificate was intrusted; but the question in each case, as to whether there has beer excusable default or misfortune

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depend upon the particular facts, and the determination of the question rests in the Supreme Court. Matter of Darling (1907), 189 N. Y. 570, aff'g 121. App. Div. 656, 106 N. Y. Supp. 430.

Where a certificate of nomination of town officers, intended to be filed in the county clerk's office, is delivered by the chairman of the town convention, in good faith, to the town clerk on the latter's demand and statement that it is his duty to file it with the county clerk, and the town clerk retains it twentyfour hours and mails it to the county clerk so late on the last day for filing that it does not reach the county clerk's office until the next day, and the eircumstances indicate, on the part of the town clerk, fraud or a design that the certificate should not be filed in time, an order should be made requiring the county clerk to print the names of the candidates upon the official ballot, People ex rel. Simmons v. Ham (1907), 56 Misc. 112, 106 N. Y. Supp. 312. Writ of mandamus denied where former nomination valid. People ex rel. McGrath v. Dooling (1910), 141 App. Div. 29.

Mandamus will not issue to compel the acceptance and filing of certificates of nomination, if they are not tendered for filing twenty days before the election, as required by this section. People ex rel. Steinert v. Britt (1911), 146 App. Div. 684, 131 N. Y. Supp. 455.

Where the last day on which certificates of nomination may be filed, as provided in section 128 of the Election Law, occurs on Sunday, such certificates must be filed on the Saturday before. Report of Atty.-Gen. (1911), Vol. 2, p. 647.

Mandamus will lie to require the filing of a proper certificate, even though the time specified within which a certificate may be presented has not yet arrived, if it may justly be inferred that defendants will refuse to file any certificate, except one which shall comply with the requirements of the statute. People ex rel. Hotchkiss v. Smith (1912), 152 App. Div. 514.

§ 129. Certification of nominations by secretary of state.

The secretary of state shall, twenty-one days before the election, or nine days before a special election, certify to the board of elections of each county, and to the board of elections of the city of New York, the name, residence and place of business, if any, of each candidate either nominated in any certificate so filed with him, or to whom he has issued a certificate, for whom the voters of any such county or said city, respectively, may vote, the title of the office for which he is nominated, the party or other political name specified in such certificate, and the emblem or device chosen to represent and distinguish the candidates of the political party or independent body making such nominations.

Derivation: Election Law, § 60, as amended by L. 1897, ch. 379, § 13; L. 1901, ch. 95, § 14; L. 1905, ch. 643, § 12.

Amended by L. 1911, ch. 891; L. 1919, ch. 630, in effect May 14, 1919. Certificate binding on local authorities.-The certificate of the secretary of state as to the names of candidates of state offices, emblems of parties and order of position on the ballot is binding on the local election authorities, and the ballot should be printed accordingly. Fernbacher v. Roosevelt, 14 Misc. 199, 35 N. Y. Supp. 898 (1895), aff'd 90 Hun 441.

130. Publication of nominations.

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At least six days before an election to fill any public office the board of elections of each county, except those counties which are wholly within the city of New York, shall cause to be published in not less than two nor more than four newspapers within such county, one of which shall be a daily newspaper, if a daily newspaper is published in such county, and in any county having one hundred thousand or more inhabitants, adjoining a city having a population of one million or more, in not less than six nor more than ten newspapers, a list of all nominations of candidates for offices other than town offices to be filled at such election, certified to such board by the secretary of state, or filed with such board or certified by such board. The board of elections of the city of New York shall, within the same time before an election to fill any public office, cause to be published in two newspapers published in each borough within such city a list of the nominations of candidates for office to be voted for at such election in such boroughs respectively, which were certified to such board by the secretary of state, or filed in the office of such board, or certified by such board and in the borough of Brooklyn the board of elections shall cause such publication to be made in the newspapers designated as corporation newspapers of said borough and in one daily newspaper published in the Jewish language.

Such publication shall contain the name and residence, and if a city, the street number of the residence and place of business, if any, and the party or other designation of each candidate, and a fac simile of the emblems or devices selected and designated as prescribed by this article, to represent and distinguish the candidates of the several political parties or independent bodies. The city clerk of each city except New York, and the board of elections of the city of New York, shall at least six days before an election of city officers thereof, held at a different time from a general election, cause like publications to be made as to candidates for offices to be filled at such city election in a like number of newspapers published in such city.

One of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election for governor cast the largest number of votes in the state for such office; and another of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election for governor cast the next largest number of votes in the state for such office. The officer or board, in selecting the papers for such publications, shall select those which, according to the best information he can obtain, have a large circulation within such county or city. In making additional pub

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