Breitenbach v. Heffernan

Hagarty, J. The Election Law (§ 330) provides: “ The supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to * * * “ 2. The nomination of any candidate * * * in a proceeding instituted by any candidate aggrieved * * *; and the court may direct * * * the holding of a new primary election where a * * * primary election has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected, but a proceeding under this subdivision relating to a primary election must be instituted within ten days of such primary election.” Within the prescribed time, the petitioner moved for an order directing the holding of a new primary election, and, further, under subdivision 4 of the same section, for a recanvass of the protested, wholly blank or void ballots shown upon the statement of the canvass. On that application, the court granted petitioner’s motion to the extent of permitting an examination and inspection of the protested, void and blank ballots. The order made thereon, and entered on the motion of the petitioner, permitted an inspection of the protested, void and blank ballots and purported to retain jurisdiction of the petitioner’s further prayer for relief pending the outcome of the examination ordered. Subsequently, petitioner moved for an order permitting him, to examine all the ballots cast at the primary election. That motion resulted in the order under review, entered on the 17th day of October, 1935, which permits an examination, inspection and recanvass of all the ballots cast and directs that the protested, void and blank ballots which have been commingled with the valid ballots be segregated. This order also provides that the court should retain jurisdiction and defer final disposition of that part of petitioner’s original motion wherein he asked that the court order a new primary election. On both applications, the orders were entered on the motion of the petitioner, and neither provides for the holding of a new primary [376] election, wMch is the only relief which the court may ultimately grant under the statute. We are of opinion that, resolving all inferences in favor of the petitioner for the purpose of this decision, it is now too late for the court to grant the relief which the petitioner seeks, necessarily involving a further application for the holding of a new election after the recanvass, by reason of the short time between now and election day. The provision of the statute quoted for the institution of a proceeding relating to a new primary election within ten days of such primary election was adopted for the purpose of having the rights of the parties under the statute determined at a time when the proceeding would not interfere with the preliminary requirements of a general election. Such time does not remain, and it is clear that if the court should ultimately determine that irregularities characterized the original primary election, it would be impossible to conduct a new primary election in time to have the successful candidate’s name appear on the ballot on election day. The board of elections should make effective the provision of the Election Law requiring election officials to segregate the void, protested and blank ballots and compel the placing of .such ballots in the proper containers provided therefor, so that litigation of this character may be avoided in the future. The order must be reversed on the law and the facts, motion denied and proceeding dismissed, without costs. Johnston, J., concurs on the grounds stated in opinions by Hagarty and Carswell, JJ.