King v. Cohen
| Decision Date | 17 October 1944 |
| Parties | KING et al. v. COHEN et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Proceeding by James V. King and others against S. Howard Cohen and others, constituting the Board of Elections of the City of New York and others. Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court, 268 App.Div. 834, 50 N.Y.S2d 461, entered September 15, 1944, which unanimously affirmed an order of a Special Term of the Supreme Court, Kings County (Nova, J.), dismissing the proceeding with respect to the respondents Jack Spitzer and David Schukin and sustaining the nominating petition of respondents Leo Rayfiel and J. Sidney Levine on the merits. The proceeding was for an order, pursuant to section 330 of the Election Law (1) declaring invalid independent nominating petitions purporting to nominate said four respondents as candidates of the ‘Liberal Party,’ for the respective offices of Member of Congress for the 14th Congressional District, State Senator from the 15th Senatorial District, Member of Assembly from the 2nd Assembly District, Kings County, and Member of Assembly from the 16th Assembly District, Kings County; (2) striking such petitions from the files of the Board of Elections and (3) restraining the Board from printing the names of said respondents on the ballots to be used at the general election of November 7, 1944. The petitioners are the candidates of the American Labor Party for the same public offices.
Affirmed.
Louis Feldman, of New York City, for appellants.
Abraham J. Multer, of New York City, and Harry Serper, of Brooklyn, for Leo Rayfiel and J. Sidney Levine, respondents, appearing specially.
Matthew M. Levy, of New York City, Abraham M. Roth, of Brooklyn, and Philip Haber, of New York City, for David Schukin and Jack Spitzer, respondents, appearing specially.
This proceeding was brought under section 330 of the Election Law to procure a declaration of the invalidity of four independent nominating petitions that were filed with the Board of Elections of the City of New York in asserted compliance with section 137 of the statute. Each petition purported to nominate a candidate of the Liberal Party for a public office to be voted for at the general election of November 7, 1944, and was questioned by the rival candidate of the American Labor Party. The Liberal Party is an ‘independent body.’ The American Labor Party is a political ‘party.’ See Election Law, s 2, subds. 5, 11. In this court, the American Labor Party candidates are appellants and the nominees of the Liberal Party are the respondents.
On August 30, 1944, the appellants obtained an order directing each of the respondents to show cause why the petition for his nomination should not be annulled. Service of this order was therein directed to be made before midnight of the same day by delivery of a copy thereof to each of the respondents personally or by leaving a copy at his address with a person of suitable age and discretion; or, in the event both such methods of notice should chance in any instance to be without avail, then by sending a copy to the respondent at the same place by registered mail with return receipt requested.
The date so set for service (August 30, 1944) was the last day on which this proceeding could have been instituted. See Election Law, s 330, subd. 1. A copy of the order was on that day left with a person of suitable age and discretion at the address of each of two of the respondents. At the same time, service upon the two remaining respondents was attempted by the mailing of a copy of the order in the fashion prescribed therein, with the result that delivery thereof did not ensue on that last day.
Such mailing was held by Special Term to be without effect and this proceeding was for that reason dismissed as to the two respondents to whom the order had been thus dispatched. The substituted service made upon the other two respondents was held to be effectual. In the end, however, this proceeding was dismissed as to them on the merits.
The Appellate Division affirmed without opinion, 268 App.Div. 834, 50 N.Y.S.2d 461, but on thereafter denying leave to appeal to this court gave expression to its point of view in these words: ‘The issues involved are academic inasmuch as many thousands of war ballots have been forwarded to soldier voters and time will...
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Angletti v. Morreale
...argument to the contrary is indistinguishable from the dissent at the Court of Appeals in Serri, which, citing Matter of King v. Cohen, 293 N.Y. 435, 57 N.E.2d 748—a 1944 case predating New York's commencement-by-filing system and thus of dubious precedential value—argued that service was u......
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Angletti v. Morreale
...argument to the contrary is indistinguishable from the dissent at the Court of Appeals in Serri, which, citing Matter of King v. Cohen, 293 N.Y. 435, 57 N.E.2d 748 —a 1944 case predating New York's commencement-by-filing system and thus of dubious precedential value—argued that service was ......
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Destefano v. Borkowski, 558/2017.
...commencement by service state.To be sure, the courts in McDonough, Kurth, and Davis all relied on, and cited to, Matter of King v. Cohen, 293 N.Y. 435, 439, 57 N.E.2d 748 [1944], as authority for their statements that "a petitioner raising a challenge under Election Law § 16–102 must commen......
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Lyden v. Katz
...was adequate. This is not a case where service was made after the last day for the commencement of the proceeding (cf. Matter of King v. Cohen, 293 N.Y. 435, 57 N.E.2d 748; Matter of Constantino, 286 N.Y. 681, 36 N.E.2d 914), for here the time of the proceeding is limited not by subdivision......