Opinion
August, 1919.
Bennett, Werner Nave, for petitioner.
William P. Burr, corporation counsel (Joseph Reilly, of counsel), for board of elections.
Petitioner seeks to have his name placed on the primary ballot as a candidate for member of the Democratic state committee. The person elected such state committeeman from the sixteenth assembly district in Kings county in the primaries in 1918, died in the spring of this year. The petitioner seeks to be chosen to fill the vacancy thus created. He alleges he has been duly elected to fill such vacancy by the members of the Democratic county committee of the said assembly district.
The Election Law provides that state committeemen shall be elected biennially in each even numbered year. § 38. It also contains the general provision, that unless otherwise provided a vacancy in the state committee shall be filled by the remaining members of that committee. § 43. Section 36 also covers this subject. It expressly provides that in case of the death of a member of a state committee the vacancy "shall be filled by the remaining members of such state committee as provided in section forty-three." Petitioner evidently moves under the further provisions of section 36. But they do not apply except there has been a change of the boundaries of an assembly district after the election of state committeemen and there be no member or more than one member resident in the changed district. Then the vacancy may be filled by the members of the county committee in that district until the next official primary election, when it shall be filled by election. There is no claim here of any change of boundaries and nothing is shown to bring the petitioner within those provisions. His case is governed by the other provisions. See Matter of Werther, 94 Misc. 681, 683.
Motion denied.