Opinion
277 A.D. 331 99 N.Y.S.2d 653 In the Matter of MICHAEL POTTER, Individually and as Chairman of the City Fusion Party, Appellant, and VINCENT R. IMPELLITTERI, Individually and as a Declared Candidate for Mayor, et al., Interveners, Appellants, v. WILLIAM J. HEFFERNAN et al., Constituting the Board of Elections of the City of New York, Respondents, and Chairmen of the Democratic County Committees for the Five Counties Constituting the City of New York et al., Interveners, Respondents. Supreme Court of New York, First Department. September 19, 1950
APPEALS from an order of the Supreme Court at Special Term (BOTEIN, J.), entered September 11, 1950, in New York County, which (1) denied an application under article 78 of the Civil Practice Act for an order directing the Board of Elections of the City of New York to refrain from taking any action, steps or proceedings for the election of a Mayor of the City of New York at the general election to be held on November 7, 1950, (2) dismissed the petition of appellant Michael Potter, and (3) by the last three decretal paragraphs numbered 1, 2, and 3 of said order, extended the time for filing petitions for independent nominations of candidates for the office of Mayor of the City of New York until September 16, 1950, the time for filing acceptances or declinations of such independent nominations until September 18, 1950, and the time to file certificates to fill vacancies caused by any such declinations until September 20, 1950. Section 143 of the Election Law provides: '12. A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, except in the offices of governor or lieutenant-governor, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election. Notwithstanding any other provisions of law, where a vacancy occurs after the last day for the filing of an independent petition for an office to be filled at the time of a general election, an independent petition may be filed for the said office within fourteen days after the vacancy occurs. A certificate of acceptance or declination in such an event shall be filed within two days thereafter and a certificate to fill a vacancy caused by declination shall be filed within two days after such declination.' Section 314 of the Election Law, as enacted by chapter 329 of the Laws of 1950, provides: 'Notwithstanding the times fixed by the provisions of this chapter * * * the time fixed for the nomination, designation and election of candidates, and the necessary proceedings relating thereto, for the primary election and general election for the year nineteen hundred fifty, shall be as follows: * * * 11. A petition for an independent nomination for an office to be filled at the general election shall be filed not earlier than September fifth and not later than September ninth preceding such election * * *. 12. A certificate of acceptance or declination of an independent nomination for an office to be filled at the general election shall be filed not later than September eleventh preceding such election. 13. A certificate to fill a vacancy caused by declination of an independent nomination for an office to be filled at the general election shall be filed not later than September fourteenth preceding such election.' The Mayor of the City of New York, who had been elected in 1949 for a four-year term expiring on December 31, 1953, filed his resignation with the city clerk on September 2, 1950. In this proceeding an order was sought adjudging that the time limited by section 314 for obtaining and filing independent nominating petitions (in this case, from September 2d to September 9th) was so unreasonably short and impossible of fulfillment as to render the application of the statute to this election unconstitutional.
COUNSEL
Walter M. Weis (Edward Potter with him on the brief), for appellant.
George W. Whiteside (Edward R. Neaher and Alan S. Kuller with him on the brief), for Vincent R. Impellitteri, and Walter T. Shirley, individually and as Chairman of the Independent Citizens' Committee for the Election of Vincent R. Impellitteri as Mayor, interveners-appellants.
Louis J. Lefkowitz (Paxton Blair with him on the brief), for Chairmen of the Republican County Committees of the Five Counties Constituting the City of New York, interveners-appellants.
John P. McGrath, Corporation Counsel (W. Bernard Richland and Stanley Buchsbaum with him on the brief), for Board of Elections of The City of New York, respondent.
William J. O'Shea of counsel (Bernard Hershkopf and Jacob Markowitz with him on the brief; Jacob Markowitz, George Rosling, John L. Flynn, Joseph M. Lonergan and Irving Rivkin, attorneys), for Chairmen of the Democratic County Committees for the five counties constituting the City of New York, interveners-respondents. Benjamin Gassman of counsel (Benjamin Gassman, Matthew M. Levy and Max Bloom, attorneys), for the Liberal Party of the Five Counties of the City of New York, intervener-respondent.
Per Curiam.
We agree that the time between September 2 and midnight of September 9, 1950, within which independent nominating petitions might be obtained and filed was an adequate, sufficient and reasonable period. On the law applicable to the state of facts herein disclosed, the court should not have extended the time to file independent nominating petitions expressly fixed by chapter 329 of the Laws of 1950 (Election Law, § 314, subd. 11). Accordingly the last three decretal paragraphs numbered 1, 2 and 3 of the order appealed from should be deleted. In all other respects, the order denying the motion to enjoin the election of a Mayor at the ensuing general election should be affirmed.
Leave is hereby granted to appeal to the Court of Appeals.
VAN VOORHIS, J. (concurring in part).
I concur with the majority in denying so much of the petition as asks to restrain the holding of an election for Mayor in 1950, but solely upon the ground that subdivision 12 of section 143 of the Election Law allows fourteen days after the vacancy occurred on Septemher 2d in which to file independent nominating petitions. Bearing in mind that sections 316 and 330 require a liberal construction of these provisions of the Election Law, there would appear to have been no occasion for the Legislature to have allowed fourteen days in which to file following the occurrence of a vacancy happening after the last day otherwise provided for the filing of independent nominating petitions, unless it had intended to grant a similar minimum time for that purpose where the vacancy occurs earlier. I think that persons desiring to file petitions for independent nominations for Mayor had until September 16, 1950, to do so as matter of right, and that for this reason the order appealed from should be affirmed.
GLENNON, J. P., DORE, COHN and SHIENTAG, JJ., concur in Per Curiam opinion; VAN VOORHIS, J., concurs in part in memorandum.
Order modified. Leave to appeal to the Court of Appeals granted.