Kaplan v. Cohen

Untermyer, J.

(concurring in the first proceeding and-dissenting in the second proceeding). I concur in the decision of the court that the convention alleged to have been held at No. 77 Fifth avenue was not properly assembled and that the names of the candidates so nominated are not entitled to a position on the ballot. I accordingly vote to affirm the order in the Kaplan case.

The order in the Antomni case, which sustains the validity of the nomination of candidates at the Hotel Capitol, should be reversed and the motion to place their names on the ballot should be denied on the ground that, upon the conceded facts, no quorum was present which had power to transact any business or to make these nominations.

The Election Law (§ 132, subd. 2) provides that “ no such convention shall proceed to the election of a temporary chairman or transact any business until the time fixed for the opening thereof nor until a majority of the delegates or respective alternates named in the official roll shall be present.” As a result of the primary election there Were eleven vacancies in the Eighth Assembly District of the Bronx due to the fact that fourteen candidates for these eleven party positions had tied in the vote. Alternate delegates had, however, been duly elected. Accordingly the board of elections in its certified list of delegates and alternate delegates properly excluded eleven delegates from the certified list of those entitled to be seated at the convention. It stated “ Eleven delegates failed to be elected in the Eighth Assembly District, Bronx County, by reason of ties ” and that “ a majority and a quorum necessary to convene the meeting and to effectuate any nominations were one hundred and fifty-four.” If these eleven party positions be regarded as vacant, then concededly no quorum was present which could make nominations. The validity of the nominations which were made thus depends on the validity of the method in which these eleven positions were filled. The positions were filled by the selection by the duly elected delegates of the Eighth Assembly District of the Bronx of eleven out of the fourteen candidates who had failed of election in consequence of the tie vote.

There is nothing in the Election Law which authorizes such a procedure. On the contrary, section 139 of the Election Law contains provisions entirely inconsistent with this method for the filling of such vacancies. It provides: A vacancy in a nomination made at a fall primary, or by a tie vote thereat, may be filled by a majority of a quorum of the members of the county committee or committees last elected in the political subdivision in which such vacancy occurs, or by a majority of such other committee as the rules of the party may provide.”

*401The concluding sentence of subdivision 1 of section 132 has no application here. It relates only to the condition which exists when a duly elected delegate does not attend the convention ” and there is no alternate available at the convention who may be substituted for him. In view of the provisions of section 139 I am of the opinion that eleven alternates could not have been seated in place of eleven delegates who had not been elected, but that question is not presented here for the reason that the eleven delegates who were seated were not selected from the alternates, although these were present in sufficient number, but from among the fourteen unsuccessful candidates at the primary election.

Finally, it is suggested that the objection that no quorum was present when the nominations were made should have been taken at the convention at the Hotel Capitol and that it is not available at this time. I do not understand this to be the law, especially where the statute (Election Law, § 132, subd. 2) expressly prohibits the transaction of any business until a quorum is assembled. Nominations made in defiance of the statute, perhaps by a group consisting of a small fraction of the total number of qualified delegates, may be challenged by any person aggrieved though not present at the convention. Those not present, whether by accident or design, do not subject themselves and the public to the risk that the meeting will proceed without a legally constituted quorum. They are entitled to assume that the meeting will adjourn unless such a quorum is present. Any other rule might moreover, defeat itself, for it would require the presence at the convention of all those intending to assert that objection and who by their very presence, might constitute a quorum.

The order in the Kaplan case should be affirmed. The order in the Antonini case should be reversed and the motion denied and a new convention should be directed to be held for the nomination of candidates at the general election to be held on November 5, 1940. (See Election Law, § 330; Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Connolly v. Cohen, 258 App. Div. 944.)

In the first proceeding: Order unanimously affirmed, without costs. Leave to appeal to the Court of Appeals granted.

In the second proceeding: Order affirmed, without costs.