Miller v. Power

• Decision Date: 02 September 1955
• Citation: 208 Misc. 728,144 N.Y.S.2d 847
• Parties: Application of Tillie MILLER, Petitioner, v. James M. POWER, David B. Costuma, Dennis J. Mahon and John R. Crews, Commissioners of Election constituting the Board of Elections of the City of New York, and William J. Connolly and Eleanor Murphy candidates for election to the purported Party Positions of 'District Leader (Male)' and 'Associate District Leader (Female)' respectively of the 8th Assembly District, New York County, and Joseph F. Clements, Bertha L. Schnelle and Thomas J. McManus, Members of the Committee to Fill Vacancies, Respondents, for an order, etc.
• Court: New York Supreme Court

Page 847

144 N.Y.S.2d 847

208 Misc. 728

Application of Tillie MILLER, Petitioner, v. James M. POWER, David B. Costuma, Dennis J. Mahon and John R. Crews, Commissioners of Election constituting the Board of Elections of the City of New York, and William J Connolly and Eleanor Murphy candidates for election to the purported Party Positions of 'District Leader (Male)' and 'Associate District Leader (Female)' respectively of the 8th Assembly District, New York County, and Joseph F. Clements Bertha L. Schnelle and Thomas J. McManus, Members of the Committee to Fill Vacancies, Respondents, for an order, etc.

Supreme Court, Special Term, New York County, Part I.

Sept. 2, 1955.

As Corrected Oct. 26, 1955.

William Barlow, New York City, counsel for petitioner.

Joseph F. Clements, New York City, for respondents.

MARKEWICH, Justice.

The petition herein seeks to invalidate certain designating petitions filed with the Board of Elections by William J. Connolly and Eleanor Murphy, named therein as candidates for certain purported party positions of the Democratic Party in the 8th Assembly District, New York County, in the primary election to be held September 13, 1955. It is contended that the party positions, set forth in the petition without reference to the Part of the Assembly District have no existence as stated, and that there is no such position as Associate District Leader (Female), the title of that for which respondent Murphy is named. (A companion petition brought by Costikyan, an aggrieved candidate, seeks the same relief. Besides he grounds set forth above, an additional ground is urged by Costikyan: that a material alteration appears on the face of each sheet of the designating petition. Nothing has been presented to the court from which it may be inferred that any such alteration was made other than before the distribution of the said petitions. Therefore, the additional ground raised in the Costikyan petition will be disregarded. Since the grounds are otherwise identical, the disposition made of the Miller petition will be determinative of both.)

Preliminary objections were made before the Board of Elections on the grounds stated. By a majority, the Board did not pass upon them but referred them to this court for determination as a matter of law.

The designating petitions do appear at first glance to be in the form prescribed by Section 135, Election Law. Above the salutation, 'To the Board of Elections of the City of New York', the words 'Designating Petition--Democratic Party' appear on one line, below which are the words, '8th Assembly District', followed by the number of the particular election district in which the sheet was circulated, and then the words, 'New York County'. All of the foregoing is printed but, following the name of the county, the words 'Part A' are inserted by typewriter. Nowhere else on the sheet does the designation 'Part A' appear. Particularly does it not appear under the heading 'Party Position' opposite the names of the two candidates Connolly and Murphy, the party position being designated in one block of type opposite both names as '8th Assembly District, New York County, New York, Assembly District Leader (Male), Associate District Leader (Female)'.

Section 135, in defining the type of petition considered herein, requires that each sheet shall be substantially in the form set forth in the statute. Nowhere is any provision made for the heading above described which appears at the top of the petition and to which, as above described, the words 'Part A' were added by typewriter. In so far as compliance with the statute is concerned, such a heading is a superfluity. Aside from this, the petitions would appear to be substantially in the form provided by statute. It is to be noted that the objections made by petitioners herein to the descriptions used by respondents Connolly and Murphy for the party positions for which they claim to be candidates refer to language supplied by the respondents and used to fill in blanks left in the form prescribed by the statute. Section 15 of the Election Law, as amended in 1955, Ch. 792, provides 'If the rules of the county committee shall so provide, assembly district leaders or one assembly district leader and one associate assembly district leader shall be elected at primary elections as herein provided, for each assembly district or part of an assembly district within any county within the city of New York as may be designated in such rules for the purpose.'

Pursuant to Section 15, subdivision 3, the Democratic County Committee of New York County has chosen the form 'assembly district leaders' and nowhere has provided for 'Associate...