Lewis v. Murray

• Decision Date: 11 March 1958
• Parties: In the Matter of Albert E. LEWIS, Joseph J. Nunan, Paul E. Reinbold and John E. Ruch, Petitioners, v. J. Edward MURRAY, Nominated as a Candidate of the 'Independent Party' for the Office of Police Justice, and J. Edward Murray, Nominated as a Candidate for the Office of Police Justice by the 'Better Government Party', and Harold S. Clark, Phillips Cramer and Elmer L. Merrill, Nominated as Candidates for the Offices of Trustees by the 'Better Government Party', all for Village Offices of the Village of Waverly, New York, and Charles W. McMahon, Village Clerk of the Village of Waverly Respondents, To Declare the Nominating Petitions of the 'Independent Party' and the 'Better Government Party' invalid.
• Court: New York Supreme Court

Page 473

171 N.Y.S.2d 473

10 Misc.2d 1009

In the Matter of Albert E. LEWIS, Joseph J. Nunan, Paul E.

Reinbold and John E. Ruch, Petitioners, v. J. Edward MURRAY, Nominated as a Candidate of the

'Independent Party' for the Office of Police Justice, and J.

Edward Murray, Nominated as a Candidate for the Office of

Police Justice by the 'Better Government Party', and Harold

S. Clark, Phillips Cramer and Elmer L. Merrill, Nominated as

Candidates for the Offices of Trustees by the 'Better

Government Party', all for Village Offices of the Village of

Waverly, New York, and Charles W. McMahon, Village Clerk of

the Village of Waverly Respondents, To Declare the

Nominating Petitions of the 'Independent Party' and the

'Better Government Party' invalid.

Supreme Court, Adjourned Special Term, Broome County.

March 11, 1958.

Alan J. Friedlander, Waverly, for petitioners.

J. Edward Murray, Waverly, for J. Edward Murray, Independent Party.

Chernin & Gold, Binghamton, Charles D. Keane, Binghamton, of counsel, for Better Government Party.

H. Bradley Smith, for Better Government Party.

FLOYD E. ANDERSON, Justice.

This is an application for an order invalidating the independent nominating petition of the 'Better Government Party', naming therein J. Edward Murray for the office of Police Justice, and Harold S. Clark, Phillips Cramer and Elmer L. Merrill, for the offices of Village Trustees, and the independent nominating petition of the 'Independent Party' naming therein J. Edward Murray for the office of Police Justice. Each of these petitions was filed with the Village Clerk of the Village of Waverly on March 4, 1958, for the purpose of having the names of J. Edward Murray, and Harold S. Clark, Phillips Cramer and Elmer L. Merrill, printed on the official ballot to be used at the annul Village of Waverly election, to be held March 18, 1958. The petition was brought by Albert E. Lewis, Joseph J. Nunan and Paul E. Reinbold, and John E. Ruch, the 'Economy Party' candidates for the offices of Village Trustees and Police Justice, respectively, against the above named 'Better Government Party' and 'Independent Party' candidates, and naming Charles W. McMahon, Village Clerk of the Village of Waverly.

The petitioners filed objections to the petitions of the above named candidates of the 'Better Government Party' and the 'Independent Party' with the Clerk of the Village of Waverly on March 7, 1958, pursuant to Section 145 of the Election Law. On the same day, a Show Cause Order was granted by Justice Walter B. Reynolds for a hearing on the Petition before this Court on March 10, 1958.

At the hearing the respondents appeared specially to contest the jurisdiction of the Court to hear and determine the Petition at this time. It is the respondents' contention that since the petitioners have filed objections with the Clerk of the Village of Waverly, pursuant to Section 145 of the Election Law, they must pursue their remedies under that section before resorting to Section 330, Subdivision 2, of the Election Law.

Section 145 of the Election Law sets forth, in detail, the procedure to be followed, once objections are filed. However, upon the authority of Matter of O'Connor (Babcock), 180 Misc. 630, 43 N.Y.S.2d 412; Vona v. Cohen, 150 Misc. 649, 271 N.Y.S. 259, affirmed 240 App.Div. 827, 266 N.Y.S. 1004, affirmed 262 N.Y. 706, 188 N.E. 130; and LeSawyer v. Board of Elections, 207 Misc. 12, 139 N.Y.S.2d 191, the objections of the respondents must be overruled.

Section 330 of the Election Law states as follows:

'The supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to any of the subjects set forth in this section, which shall be construed liberally. Such proceedings may be instituted as a matter of right and the supreme court shall make such order as justice may require.

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'2. The nomination of any candidate, or his election to any party position, in a proceeding instituted by any candidate aggrieved or by the chairman of any committee as defined in section two, or, in the case of a nomination made otherwise than at a primary election, by a person who shall have filed objections pursuant to section one hundred forty-five.'

The petitioners are aggrieved candidates and as such are not required to file objections under Section 145 of the Election Law prior to proceeding under Section 330. The mere fact that the petitioners did file objections with the Village Clerk does not act to deprive them of their right to the Summary Jurisdiction of the Supreme Court under Section 330.

'There is no dispute as to the fact that certain objections were registered with the board of elections within three days after the petitions herein had been filed. The Supreme Court, in any event, is vested with summary jurisdiction to determine any questions of law or fact, irrespective of whether such questions had previously been raised at the hearings before the board of elections, Election Law, § 333, (sic) as amended by Laws of 1924, c. 405.' Matter of Vona v. Cohen (Supra) [150 Misc. 649, 271 N.Y.S. 260].

In the Matter of McGovern (Olson), 180 Misc. 508, 512, 44 N.Y.S.2d 132, 136, reversed 266 App.Div. 985...