Opinion
February, 1901.
Henry B. Heylman, for relator.
John Whalen, Corporation Counsel, and Terence Farley, for respondents.
This is an application by a voter for an order requiring the police board to strike out the word "Democratic," and to enter and insert in the place thereof the word "Republican" against the name of the applicant, Samuel W. Smith, on the original primary enrollment books of the Eighteenth election district, in the Twenty-fifth Assembly district of the borough of Manhattan, city of New York, or putting him in the same position as though no enrollment had been made. It appears that the petitioner is a citizen about sixty years of age; that he is and always has been enrolled as a member of the Republican party; that he voted with said party at the last general election and is desirous of acting as an enrolled member thereof during the present year, and that on enrolling for the primaries in 1900 he wrote his name by mistake in the Democratic column. The statute (Laws of 1899, chap. 473, § 11) provides for the review by the court of cases, generally, where there has been neglect or action by officers or members of political conventions or public boards prejudicial to the right of any person to participate in a primary election or to enroll with any party, and authorizes the court to make such decision and order as under all the facts and circumstances of the case justice may require. The difficulty in this instance is that the applicant has no grievance against any officer or member of a political convention or public board. On the contrary, he seeks relief in this proceeding from the consequences of his own action or neglect. Under such facts as are here disclosed it would be a dangerous precedent to transfer a voter from one party to another. And to put the applicant now in the same position as though no enrollment had been made would accomplish indirectly what the court declines to do directly.
Motion denied.