8 125

Upon an application to a justice of the Supreme Court to correct an alleged error of the commissioner of elections of Onondaga county in rejecting and refusing to file a petition for the nomination of a candidate, the justice will not be justified, from a mere inspection of the petition, in rejecting names and reducing the number below that fixed by the statute by inferring from the similarity of the handwriting that different names were signed by the same person; but, where the same name and address appear more than once, it is to be presumed that the several signatures represent but one person and but one should be counted. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

Where the same name and address appear upon two petitions naming different candidates for the same office, the signature upon the petition first filed should be recognized. Matter of Commissioner of Elections

(1909), 64 Misc. 620, 120 N. Y. Supp. 580.

The justice may take judicial notice of the fact that a town or county designated as the residence of a signer of a petition for the nomination of a member of assembly is not included in the assembly district, or a street so designated is wholly outside its boundaries; but the court cannot take judicial notice of the fact that, where a street is partly in and partly outside the assembly district,.a given number on the street is outside such district. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580..

Party to review.-A county clerk has the right to institute proceedings for the review of an order commanding him to do an official act which he deems to be a violation of the statutes of the state, and the fact that he has no pecuniary interest in the act does not effect his right to appeal. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388.

The provision of this section allowing a review upon the complaint of "any citizen must be understood as referring to any citizen who has instituted a proceeding by filing objections with the officer filing the certificate of nomination. Matter of Social Democratic Party (1905), 182 N. Y. 442, rev'g 105 App. Div. 243, 93 N. Y. Supp. 1023, which aff'd 45 Misc. 194, 91 N. Y. Supp. 941.

Time within which order may be made. The provision that a final order must be made on or before the last day fixed for filing certificates for nominations to fill vacancies is directory and not mandatory, and where the court has acquired jurisdiction and the case has been submitted within the time required by the statute its order will be effectual although made after the expiration of such time. (1900), 164 N. Y. 393, rev'g 54 App. Div. 180; Matter of Herman (1905), Matter of Hennessy 108 App. Div. 335, 96 N. Y. Supp. 144.

After the time for filing certificates to fill vacancies has expired the jurisdiction of the court to entertain summary proceedings to review the determination of a commissioner of elections has terminated, and it will not entertain a proceeding to determine whether certificates are void or only defective when the time to correct defects has gone by. Independence League Nominations (1906), 51 Misc. 486, 100 N. Y. Supp. Matter of

760.

The expiration of the time for filing certificates of nomination to fill vacancies does not impair the jurisdiction of the appellate division on an appeal from an order reviewing the determination of the county clerk as to which of two nominees for office was the regular nominee of a

given party. Matter of Emmett (1896), 150 N. Y. 538, 44 N. E. 1102, rev'g 9 App. Div. 237.

The provision of the statute that the order reviewing the determination must be made on or before the last day fixed for filing certificates of nominations to fill vacancies, applies to the original order which is appealed from, and the appellate division can review this order and make a determination of the appeal after that date. Matter of Emmett (1896), 150 N. Y. 538, 44 N. E. 1102, rev'g 9 App. Div. 237.

The provision of this section (prior to the amendment of 1914) that an order of the Supreme Court relating to the sufficiency of a petition for an independent nomination must be made within fifteen days of the election is merely directory, and objections to a petition for an independent nomination for the assembly filed on the day registration was completed or as soon as the validity of the petition could be ascertained is sufficient. Matter of Stoddard (1913), 158 App. Div. 525.

Use of word "progressive." The use of the word "progressive" by any organization other than "the National Progressive party" though in conjunction with other names would tend to create confusion and a loss of votes through inadvertence on the part of some electors, and under this section the court has jurisdiction to pass upon the right to the use of said word in a certificate of nomination. Matter of Kaufman (1912), 78 Misc. 72.

§ 126. Supplying omitted emblems.

If a party or independent body shall have nominated candidates to be voted for by the voters of the entire state, in any year, and shall have no device or emblem, selected and certified as required. by this chapter, to distinguish such candidates, it shall be the duty of the secretary of state to select a device or emblem for that purpose, and such device or emblem so chosen shall be used to distinguish all candidates of that party or independent body throughout the state, whether such candidates are nominated for state or local offices; and if any certificate of nomination of candidates to be voted for by the voters of a district less than the entire state shall be filed with the secretary of state, or with any public officer pursuant to this article, by an independent body, or if nominations for such offices be made by a party, which independent body or party shall have made no nomination of candidates for offices to be filled by the voters of the entire state, and such independent certificate of nomination shall omit or the state committee of such party shall have omitted to select a device or emblem to distinguish the candidates thus nominated, it shall be the duty of the secretary of state or other public officer with whom an independent certificate of nomination for such offices is required by this chapter to be filed to select a device or emblem to represent such candidates.

Derivation: Election Law, pt. of § 56, as amended by L. 1898, ch. 335; L. 1901, ch. 654. Amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

§ 127. Places of filing independent certificates of nomination. Independent certificates of nomination of candidates for office to be filled by the voters of the entire state, or of any division or district greater than a county, shall be filed with the secretary of state, except that each such certificate of nomination of a candidate

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.

Independent 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. Such 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. Such 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 office 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. All other independent certificates of nomination shall be filed with the board of elections of the county in which the candidates so nominated are to be voted for.

All such filed certificates and corrected certificates, of nomination, all objections to such certificates and all declinations of nomination are hereby delared 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 independent certificates issued by or 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 name and emblem of the independent body making such nomination, and in which shall also be stated all declinations of such nomination 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.

Amended by L. 1911, ch. 891, and L. 1913, ch. 820, in effect Dec. 17, 1913. 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 sec tion. Matter of Darling (1907), 121 App. Div. 656, 106 N. Y. Supp. 430, ad 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 of nomination. Independent certificates of nomination required to be filed with the secretary of state shall be filed not earlier than the sixth Tuesday, and not later than twenty-five days before the day of general election. All other independent certificates of nomination, except those required to be filed with village clerks and with town clerks of towns in which town meetings are held at a time other than the time of general elections, shall be filed not earlier than the sixth Tuesday and not later than twenty days before the day of general election. Independent certificates of nomination required to be filed with village clerks and with town clerks of towns in which town meetings are held at a time other than the time of general elections shall be filed at least ten, and not more than twenty days. before the day of election.

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, and L. 1913, ch. 820, in effect Dec. 17, 1913. 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. 024, 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