Opinion
August 30, 1906.
Samuel Untermyer, for the appellant. Julius M. Mayer, Attorney-General, and James G. Graham, Deputy Attorney-General, for the respondent Kelsey.
James McKeen and Frederick L. Allen for the intervening respondents.
Chapter 326 of the Laws of 1906 requires the board of directors or trustees of the company to nominate candidates for every vacancy at least five months before the election, which is fixed for December eighteenth, and file a certificate of the same in the office of the Superintendent of Insurance, at its home office and at the office of every general agency of the company, and requires the company at least two months prior to the election to mail to each policyholder a statement of the candidates so nominated by it and by any policyholders as permitted by the statute. This statement of nominations, forms of proxies and certain instructions, with a return gummed envelope, are to be mailed to each such policyholder. The statute provides that the inclosures so mailed shall be approved by the Superintendent of Insurance before being mailed. This does not recognize any authority in him to change the nominations, or authorize him to make any different statement of the nominees from the ones filed. Chapter 354 of the Laws of 1906 provides that the election shall be under the supervision of the Superintendent of Insurance. This does not purport to give him any authority to change the nominations as made. There is no provision made in the statute for changing a nomination after it is made, except in case of the death or incapacity of a nominee.
In Matter of Dental Society v. Jacobs ( 103 App. Div. 86) it was held by this court that a public officer cannot by mandamus be compelled to change a record in his office except in cases where it is expressly authorized by statute.
This court cannot, therefore, compel the Superintendent of Insurance to change the record of nominations filed with him. Neither can it require the company to send a different statement of nominations to the policyholders from that required by the statute.
The order appealed from is, therefore, affirmed, with costs.
All concurred.
Order affirmed, with costs.