We have concluded, for public reasons, to hear this case informally upon the papers filed in the clerk's office and without any printed record. The brief time available for the examination and disposition of the case will permit little more than a bare statement of the result at which we have arrived. *Page 540
The existence of factional divisions in the Republican party in Westchester county has resulted in the nomination of two candidates for member of assembly in the second district. Both candidates presented to the county clerk certificates of nomination, as required by the Election Law, and each made objections against the regularity of his opponent's nomination. It was the duty of the county clerk in the first instance to decide this contest and determine which was the regularly nominated candidate. In performing this duty it became necessary to decide all questions of fact involved in the question of regularity, and he held that the appellant, Richard S. Emmet, was the regular nominee and filed his certificate. He held that Ennis, the other claimant, was not regularly nominated and rejected his certificate. The latter, however, applied to a justice of the Supreme Court, on a petition stating the facts, for a review of the action of the clerk. The judge entertained the application, and after a hearing reversed the determination of the clerk and ordered the other certificate to be filed. This order was made on the 17th of October, but not entered until the 19th. An appeal from the order to the Appellate Division was perfected on the 20th of that month and brought to argument on the 26th, and the court dismissed the appeal on the ground, as we understand from the papers, that the court had no power to hear it or make any order in the premises. From this order dismissing the appeal the applicant has appealed to this court. Since the Appellate Division has made no decision or determination of the controversy, either upon the law or the facts, we have no power to examine into the merits, but must confine ourselves to the question whether the Appellate Division had the power to hear and decide the case upon the facts contained in the record.
The Election Law provides that when a certificate has been filed by the clerk, the Supreme Court or any justice thereof within the judicial district, or any county judge within the county, shall have summary jurisdiction to review the determination and make such order as justice may require, *Page 541 but the order must be made on or before the last day for filing certificates of nomination to fill vacancies, and this time expired on the 19th of October. The appeal was dismissed for the reason that the limitation applied to the Appellate Division as well as the other judicial officers having power to make the order, and hence that court could not, on the 26th of October, make an order which the statute required to be made not later than the 19th.
It will be seen that the statute makes no provision for an appeal from the order of the judge, and the order there mentioned which must be made within a specified time is the original order made in the first instance by the Special Term or judge. The limitation does not apply to any order made by the Appellate Division on appeal, since no such appeal is contemplated by that statute. But as the order is one made in a special proceeding, and is not in terms or by implication made final, an appeal can, we think, be taken to the Appellate Division under the general provisions of the Code. The right of appeal is practically conceded, but it is urged that the court has no power to decide it after the expiration of the time limited for making the order.
We think that this is not the true meaning of the statute. When the right of appeal is conceded, as we think it must be, the jurisdiction of the Appellate Division attaches when the appeal is made and continues until the case is heard and decided. The power to decide an appeal regularly made is not lost by the lapse of time, but may be exercised even after the election. The limitation as to time applies to the court of original jurisdiction and not to another court that has power to review the order.
It is quite true that the facts and circumstances which may appear on the hearing of the appeal may be of such a character as to warrant the court, in the exercise of a wise discretion, in declining to make a decision that can have no practical effect upon the parties or in the settlement of a question that affects the public. But the learned court below did not reach that feature of the case. The appeal was dismissed on the *Page 542 ground that the power of the court to make any order was lost by the lapse of time. We think that its power and jurisdiction to hear a case pending before it, as this was, remained unimpaired by the circumstance that the last day for filing certificates to fill vacancies had expired.
The order appealed from should be reversed, and the case remanded to the Appellate Division for such further proceedings as it may deem proper. No costs allowed to either party.
All concur.
Order reversed.