People Ex Rel. Garvey v. Democratic General Committee

Gray, J. The order of the Appellate Division has reversed, but not as matter of discretion, an order directing a peremptory writ of mandamus to issue on the petition of the relator, requiring the appellant, the Democratic General Committee of New York county, to recognize the relator and his associates, who had been duly elected members of the Democratic general committee by the Democratic electors of the ninth assembly district, at a primary election, held September 16, 1902, as members of that committee and, further, “ to recognize as a member of the executive committee of the said committee the person chosen by the relator and his associates from the Ninth Assembly District,” etc. The order of the Appellate Division, also, dismissed the proceeding. I advise the affirmance of the order appealed from and for the following reasons. In the first place, the writ of mandamus will only issue to compel the performance of a specific and definite act. In this case, the duty commanded to be performed was indefinite and of possible dispute, or ambiguity; inasmuch as the person chosen for membership of the executive committee was not named. In the second place, it appears from the return to the petition that the relator and his associates from the ninth assembly district were not denied the exercise of their rights as members of the general committee ; that they were accorded recognition and the right to vote upon all resolutions, except, possibly, upon the appointment of a committee on credentials, because of a protest having been filed to the seating of the delegates from the ninth assembly district; although it was answered to the petition that that resolution was unanimously carried. In the third place, the person chosen from the ninth assembly district as a member of the executive committee was not *417 named and no demand was made that any specific person should he recognized as the member of the executive committee. hior did any person make any demand to be recognized as the member of the executive committee chosen from the ninth assembly district. These reasons, in my opinion, made the issuance of a peremptory writ of mandamus an error, for which the order of the Special Term was properly reversed. The order appealed from should be affirmed, with costs.