This is an application under section 330 of the Election Law for a summary order declaring invalid the nomination of John P. O’Brien as Democratic candidate for mayor of the city of New York, to fill the vacancy in that office created by the resignation of its incumbent on September 1, 1932. The removal of the certificate of nomination from the files of the board of elections is sought, as well as an order enjoining the board from placing the name of John P. O’Brien on the official ballot or the official voting machines to be used at the general election to be held on November 8, 1932, to fill the vacancy. It is claimed that the nomination is invalid because the certificate of such nomination was not filed with the board of elections until October 7, 1932, in alleged violation of subdivision 5 of section 140 of the Election Law, which requires “ a certificate of party nomination for an office to be filled at the time of a general election,” to be filed “ not later than the fifth Tuesday preceding such election.” The fifth Tuesday preceding the election fell on October 4, 1932. It is to be noted, however, that the last paragraph of section 140 of the Election Law provides that: “ If a vacancy described in subdivision seven of section one hundred and thirty-one occur too late to comply with the provisions of this section, the certificates of nomination, declination and to fill a vacancy in such nomination shall be filed as soon as practicable.” (Italics the court’s.)
The vacancy described in subdivision 7 of section 131 is one “ occurring after the fifth Tuesday preceding the fall primary, in an elective office required to be filled at the next general election, if it be an office for which party nominations might otherwise be made at a fall primary or by a convention of delegates chosen at such a
It follows that the provisions of the last paragraph of section 140 of the Election Law are applicable here if the vacancy occurred too late to permit the certificate of nomination to be filed on or before October 4,1932, and if the certificate was filed as soon as practicable. Did the vacancy occur too late to permit the certificate to be filed by October 4, 1932, and if so, was the certificate filed as soon as practicable?
On September 23, 1932, in a mandamus proceeding instituted in this court on September 12, 1932, by one David MacAdams, an order was entered commanding the board of elections “ to cease and refrain from taking any action * * * for the election of a Mayor of the City of New York ” at the general election to be held on November 8, 1932, and directing the board, in matter and paraphernalia to be prepared for use at the election, to omit any reference to the office of mayor of the city of New York as an office to be voted for at said election, and the names of any and all purported candidates for said office. The order at the same time denied the application of David H. Knott, as chairman of the county committee of the Democratic party for the county of New York, for an order directing the board to include the office of mayor among those to be voted for at the general election to be held on November 8, 1932. An appeal promptly taken on September 26, 1932, from this order resulted in a reversal thereof by the Appellate Division of this department by order entered September 30, 1932, the petition of MacAdams being dismissed and that of Knott being granted. The board of elections was directed to proceed with the necessary steps for holding an election for the office of mayor. Thereupon, on that very day, the chairmen of the county committees of the Democratic party of the counties of New York, Kings, Queens Bronx and Richmond issued a call for a meeting of the members of the county committees of the party in said counties, consisting of some 32,075 persons, to be held at Madison Square Garden, New York city, on October 6, 1932, at seven o’clock p. m., for the purpose of nominating a candidate for the office of mayor. This was the only manner in which a party nomination of a candidate to fill a vacancy occurring after the fifth Tuesday preceding the fall primary
Under these circumstances, in legal effect, during the period from September 23, 1932, to September 30, 1932, there was no vacancy in the office of mayor required to be filled at the next general election. Certainly it is not reasonably to be expected that nominations for the office of mayor would have been made at a time when, according to the pronouncement of this court, then the last judicial word on .the subject, there was no vacancy in the office of mayor to be filled at the general election held this year. The attempt to file a certificate of nomination during this period would have been futile in view of the provisions of the order restraining the board of elections from taking any steps to hold a mayoralty election. Under the order of September 23, 1932, the board of elections would have been obliged to reject any certificates of nomination tendered to it for filing. Furthermore, any attempt to make nominations and file certificates, though not technically a contempt of court, would have been contrary to the spirit if not the letter of the order of the court. Until the decision of the Court of Appeals the question of whether the vacancy in the office of mayor was one to be filled at the general election, to be held this fall rather than one to be filled at
In determining whether the vacancy occurred too late to comply with subdivision 5 of section 140, the vacancy must in the circumstances be regarded as having occurred at the time the order of the Appellate Division was entered on September 30, 1932. The period of four days between that date and October fourth was obviously too short to permit of the calling and holding of a meeting of the 32,075 members of the county committees, and in addition the filing with the board of elections of the certificate of the nomination made at such meeting. All the 32,075 members were entitled to receive written notice of the joint meeting within a reasonable time in advance of the meeting in accordance with the party rules. Provision had to be made for hiring a hall large enough to allow an orderly assemblage of the vast army to be accommodated. Madison Square Garden was the only place in the city of New York suitable for the convocation of such a gathering. It is stated, and not denied, that the first evening for which the garden was available after September 30, 1932, was October 6,1932. An evening rather than any other time had to be chosen for such a meeting in order to give all members of the county committees a fair and reasonable opportunity to attend.
Under all these circumstances how can it be said that the vacancy-occurring during the day of September 30, 1932, did not occur too
Furthermore, the respondent O’Brien asks for affirmative relief under the authority of section 330 of the Election Law as a “ candidate aggrieved.” That section provides that: “ § 330. Summary jurisdiction. 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. * * * 2. The nomination of any candidate, or his election to any party position, in a proceeding instituted by any candidate aggrieved.”
Nominated on October 6, 1932, the respondent O’Brien could not have filed his certificate of nomination on October fourth. He caused the certificate to be filed upon the very day following the night of his nomination, namely, on October seventh. He now invokes the discretion of this court and asks that an order be made (1) relieving him of the statutory requirement that the certificate of nomination be filed not later than October fourth, and (2) providing that the filing of the certificate on October seventh be regarded as a full compliance with the statute under all the circumstances. It is true that the statutory requirement as to the time when certificates of nomination should be filed is mandatory. (Matter of Darling, 189 N. Y. 570.) In that very case, however, the Court of Appeals in a per curiam opinion said (at p. 571): “ Though we regard the statutory requirement as to the time when certificates of nomination should be filed as mandatory, a majority of the court are of the opinion that there may occur accidents and mistakes, causing delay in such filing, from the effects of which the Supreme i
In the instant case, however, such an exceptional situation appears to be presented. For reasons similar to those referred to in arriving at the conclusion that the vacancy occurred too late to permit compliance with subdivision 5 of section 140 of the Election Law, it is my opinion that the failure of the Democratic party to make the nomination for the office of mayor on or before October 4, 1932, was due to no negligence or fault on its part or on the part of the chairmen and members of the county committees authorized to make such nomination. On the contrary, the failure to make the nomination on or before October 4, 1932, was the direct result of the order of this court, dated September 23, 1932, which in effect suspended all proceedings directed toward the filling of the vacancy in the office of mayor at the general election to be held on November 8, 1932, until it was reversed by the order of the Appellate Division entered on September 30, 1932. In view of the very short amount of time which then remained, the making of a nomination on or before' October 4, 1932, was a practical impossibility. In these circumstances the case is one where “ the delay has not been due to the negligence or fault of the convention [in this case the county committees] making the nomination,” and that, therefore, it is one in which the discretionary power of the court may be exercised within the doctrine of the Darling Case (supra). It follows that even if it were to be assumed that the vacancy did not technically
For the reasons indicated, the application of the petitioner is denied, and the cross-application of the respondent John P. O’Brien is granted. Settle order.