plete such canvass within one hundred and twenty hours from midnight of the day upon which the primary election was held, except that such custodian shall canvass first the votes for delegates and alternates to state and judicial district conventions and complete such canvass at the earliest time possible.

He shall canvass separately the votes cast in each election district by the enrolled voters of the several parties respectively.

The candidate for a party nomination to public office, or for election to a party position, to be filled by the voters of a territory wholly within an election district, ward or town, who has received the highest number of votes cast in the primary election of a party in such election district, ward or town, shall be the nominee of said party for such public office, or shall be elected to such party position. Said custodian shall deliver upon request to such candidate, if he be elected to a party position, a certificate of his election.

The candidate for a party nomination to public office, or for election to a party position, to be filled by the voters of a district wholly within the jurisdiction of a custodian of primary records and greater than an election district, ward or town, who has received the highest number of votes cast in the primary election of a party in such district shall receive the nomination of said party for the public office, or be elected to the party position, for which he was designated or voted for. The custodian of primary records shall deliver upon request to such candidate, if he be elected to a party position, a certificate of such election, and, immediately after completing the canvass of votes for delegates and alternates to conventions, shall make up the rolls of any judicial district convention for a judicial district wholly within the jurisdiction of such custodian, to which delegates, and alternates, if any, were elected at such primary, and promptly mail or deliver a certified list of such delegates, and alternates, to the chairman and secretary of the committee which, by the rules of the state committee of the party holding the convention, is empowered to call the convention.

The custodian of primary records shall duly certify to the secretary of state a statement of the vote cast in the county in the primary election by the enrolled voters of each party, respectively, for all candidates for nomination for public office, or for election to party position, whose designations are required by this chapter to be filed in the office of the secretary of state. He shall also certify to the secretary of state a list of delegates, and of alternates, if any, elected to each state convention and also delegates, and alternates, if any, elected to any judicial district convention in a district not wholly contained within the jurisdiction of such custodian. Each such certified list of delegates and alternates shall be filed by such custodian in the office of the secre

tary of state within forty-eight hours from midnight, and every other statement herein required to be certified to such secretary shall be so filed within one hundred and twenty hours from midnight of the day on which the primary election was held, and such custodian shall also certify to the secretary of state the names and addresses of nominees of the various parties for the office of representative in congress, state senator and member of assembly, where designations are not filed with the secretary of state.

2. Canvass by the secretary of state. The secretary of state shall forthwith proceed to canvass the certified statements so filed with him, and such canvass shall be made separately as to the candidates of each party.

The candidate voted for at an official primary election who has the highest number of votes shall receive the nomination of said party for the public office, or be elected to the party position, for which he was designated or voted for. The secretary of state shall forthwith transmit to each candidate elected to a party position a certificate of such election.

3. A certificate of election to party position at an official primary of a party duly issued as herein provided shall entitle the person to whom it is issued to membership in the committee or to a seat in the convention to which he is elected. Upon the completion of said canvass to be made by the secretary of state, he shall prepare certified statements of the result of the primary election of each party participating therein. Immediately upon receipt from the several custodians of primary records of certified lists of delegates and alternates elected to conventions, he shall make up the rolls of the state convention and of each judicial district convention, of each party, to which delegates, and alternates, if any, were elected at such primary, except a judicial district convention for which the rolls of delegates and alternates are to be prepared under the provisions of this section by a custodian of primary records, and promptly mail or deliver certified lists of such delegates, and alternates, if any, as follows: any such list for a state convention of a party shall be mailed or delivered to the chairman and secretary of the state committee of such party; any such list for a judicial district convention of a party shall be mailed or delivered to the chairman and secretary of the committee which, by the rules of the state committee of the party holding the convention, is empowered to call the convention. The lists of delegates and alternates to a state convention certified by the secretary of state as provided in this subdivision, and the lists of delegates and alternates to a judicial district convention certified by the secretary of state or custodian of primary records as provided in this section, shall be conclusive except upon judicial review as provided in section fifty-six of this chapter.

4. The statements of result of any official primary election filed or prepared in the office of a custodian of primary records or of the secretary of state showing the nomination of a party candidate for public office at an official primary election shall be equivalent to a certificate of his nomination, and no other certificate of nomination shall be required to be filed for any such candidate so nominated.

Added by L. 1911, ch. 891; amended by L. 1913, ch. 820; L. 1914, ch. 244; L. 1918, ch. 323; L. 1921, ch. 479, in effect May 2, 1921.

Duty of custodian is ministerial.- The duty imposed upon the custodian of primary records by this section to deliver the certificate of nomination to the person who, by the statement filed and canvassed, is shown to have been nominated, is ministerial and not judicial, and he has no power to receive or act upon affidavits tending to explain, vary or contradict such statement and he cannot therefore determine that certain votes cast for a candidate having a similar name as one of the other candidates were intended for such other

candidate. People ex rel. Calihan v. Hunt (1902), 75 App. Div. 33, 77 N. Y. Supp. 973, rev'g 36 Misc. 622, 74 N. Y. Supp. 399.

Nor has the court any power to receive or consider such affidavits in the proceeding instituted to review the action of the custodian of primary, records in refusing to issue a certificate of nomination to the relator. People ex rel. Caliban v. Hunt (1902), 75 App. Div. 33, 77 N. Y. Supp. 973, rev'g 36 Misc. 622, 74 N. Y. Supp. 399.

§ 90. Filling vacancies and determination of tie vote after primaries; filling certain vacancies in convention nominations.

A vacancy in a nomination for public office made at a primary election shall be filled as follows: A vacancy caused by the declination, disqualification or death of a candidate, or by a tie vote, shall be filled by a majority vote of a quorum of the state committee, if the vacancy occur in a nomination for an office to be filled by all of the voters of the state, and otherwise by the members of the county committee or committees elected at such primary in the political subdivision in which such vacancy occurs, or by such other committee as the rules and regulations of the party may provide. A vacancy caused only by the declination, disqualification or death of a candidate for public office nominated by a state or judicial district convention shall be filled in the same manner. A certificate of any nomination to fill a vacancy provided for in this section shall be filed with the board or officer with whom a designation of a candidate for such public office is required to be filed, or, in the case of a vacancy in a nomination by convention, with the board or officer with whom an independent certificate of nomination for the same office is required to be filed.

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

§ 91. Party nominations for special elections and to fill certain

vacancies.

Party nominations to an office to be voted for at a special election shall be made in the manner prescribed by the rules and regulations of the respective parties. A party nomination of a candidate for a vacancy in an elective office required to be filled at the next general election, occurring after the expiration of the period provided for the delivery by the chairman of a general committee to the custodian of primary records of the certified statement provided for in section seventy-five, shall be filled by a majority vote of a quorum of the state committee, if the vacancy occur in a nomination for an office to be filled by all the voters of the state, and otherwise by the members of the county committee or committees elected in the political subdivision in which such vacancy occurs at the official primary preceding the general election at which such vacancy is to be filled, or by such other committee as the rules and regulations of the party may provide.

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

Nominations may be made by the party committees for an office becoming vacant after the primaries. Opinion of Atty.-Gen. (1919), 21 State Dept. Rep. 278.

§ 92. Unofficial primaries.

Notice of all unofficial primary elections shall be given in the same manner as in the case of official primary elections, except that such notice shall be given by the proper party officers and shall not be at public expense. Unofficial primary elections shall be held in such places within the unit of representation for which the primary election is held, as shall be designated by the proper political committee, but there shall be at least one polling place within and for each assembly district, ward or village. The chairman and

secretary of the political committee calling an unofficial primary election, or under whose direction such primary election is held, shall post and keep posted during the election, at or near the entrance to the room where the primary election is held, so that the same is clearly visible from the street, a conspicuous notice calling attention to the place at which the primary election is being held. Unofficial primary elections shall be held at the expense of the party holding them, and, except as herein otherwise provided, shall be subject to the rules and regulations of such party.

There shall be a chairman and secretary for each unofficial primary and there may be tellers. No person shall be entitled to vote at an unofficial primary unless he may be qualified to vote on the day of election.

The chairman may administer any oath required to be administered at any primary and he shall decide all questions that arise relating to the qualification of voters when a voter is challenged by any elector and shall reject such vote unless the person offering the vote is willing to be and shall be sworn that he will truly answer all questions put to him touching his qualifications as such voter and shall state under oath that he is qualified to vote at such primary.

The ballot box used at any primary shall be examined by the secretary and by the tellers, if any, in the presence of the watchers, if any, before any ballots are received, to see that there are no ballots therein. Such watchers are entitled to be present from the commencement of the primary to the close of the canvass and the signing of the certificates thereof. At the close of the canvass of the ballots cast for each candidate, the secretary shall publicly announce the vote and the result of the canvass.

No unofficial 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: Former § 50. § 53, in effect Nov. 15, 1911. § 4, pt. of subd. 5.

Renumbered and amended by L. 1911, ch. 891,
Originally revised from Primary Election Law,

Objection as to notice, when unavailable. The objection that it does not appear affirmatively that notice of a primary election was published as required at the Primary Election Law cannot be taken for the first time on a review of the determination of the board of elections as to the result, and particularly where the alleged defect was not specified in the petition for a review. Matter of Kennedy (1902), 36 Misc. 721, 74 N. Y. Supp. 369.

93. Penalty for violation.

Unless otherwise expressly provided in this chapter any person violating any of the provisions of articles two, three, four, four-a and four-b of this chapter is guilty of a misdemeanor.

Derivation: Added by L. 1911, ch. 891, § 54, in effect Nov. 15. 1911.

§ 94. Perjury.

All oaths administered under the provisions of this article and the preceding articles of this chapter are hereby declared to be oaths required by law, and to be necessary for the ends of public justice.

Derivation: Formerly § 74. 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, pt. of § 10. !