Summary
In Matter of Holley (268 N.Y. 484) we called attention to the limitation and extent of the powers of the court or a justice thereof within the judicial district to make an order such as the one here presented under subdivision 2 of section 330 of the Election Law (Cons. Laws, ch. 17).
Summary of this case from Matter of Devine v. OsmannOpinion
Argued October 21, 1935
Decided October 22, 1935
Appeal from the Supreme Court, Appellate Division, First Department.
Irving H. Saypol and Leo Kottler for Ira H. Holley, appellant.
Paul Windels, Corporation Counsel ( Paxton Blair, Russell Lord Tarbox and Seymour B. Quel of counsel), for Board of Elections of the City of New York, appellant.
Jay Leo Rothschild and Walter S. Beck for respondent.
The Legislature by section 330 of the Election Law (Cons. Laws, ch. 17), has conferred upon the Supreme Court broad power to determine "any question * * * arising * * * [and] make such order as justice may require" in respect to the matters enumerated in the succeeding subdivisions of that section. The field of its powers is limited to the specified matters; within that field the power is plenary. Among the matters specified in respect to which this plenary power has been granted is "the nomination of any candidate." (Subd. 2.) The provision in the same subdivision that "the court may direct a re-assembling of any convention or the holding of a new primary election where a convention or primary election has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected," is not a limitation on the plenary power of the court to make such order as justice may require in respect to the nomination of a candidate where a determination as to who rightfully was nominated is not impossible. The cases in which this court has held that no order for a general recount or recanvass of the votes may be ordered did not concern the nomination of candidates, but their election to office, in respect to which the statute has not given plenary power to the court.
The consent of the respondent to the entry of orders for re-examination of ballot boxes cures irregularities, if any, in the application of the appellant, Holley. That consent could not be withdrawn after both sides had acted upon it. We do not decide whether a recount of all the boxes should have been made if the respondent, Rittenberg, had made timely demand.
The order of the Appellate Division should be reversed and the orders of the Special Term affirmed, without costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur; CROUCH, J., not sitting.
Ordered accordingly.