Kaplan v. Cohen

Per Curiam. The purported convention held at No. 77 Fifth avenue, borough of Manhattan, city of New York, was not lawfully convoked and the action of this group is without force or effect. The order declaring invalid the nominations there made should accordingly be affirmed. We are of opinion that the judicial convention convened at the Hotel Capitol pursuant to the call issued under the rules of the State Committee of the American Labor Party was lawfully constituted and that the nominations there made were valid. The claim is now urged that at this convention no quorum was present, though such a question was not at any time raised during the meeting. In all, 318 delegates and 318 alternates were to be elected at the primary election. With all vacancies filled, 160 constituted a quorum. It appears that at least 163 duly accredited delegates and alternates were present. The point is made by appellants that the 163 persons who acted were not all duly elected delegates owing to the method employed in filling eleven vacancies in the Eighth Assembly District, Bronx. Such vacancies arose by reason of the fact that at the primary election fourteen candidates for these eleven positions received a tie vote. These eleven places, accordingly, were vacant. They were filled by the unanimous vote of the twenty-four duly elected delegates present from the Eighth Assembly District, Bronx county, by selection of the eleven from the fourteen who had been tied in the primary election. Such procedure was apparently adopted pursuant to subdivision 1 of section 132 of the Election Law, which provides: “ * * * When a duly elected delegate does not attend the convention, his place shall be taken by one of the certified alternates, if any, to be substituted in his place, in the order in which the name of such alternate appears upon the certified list, and if no alternates shall have been elected or if no alternates appear at such convention, then the delegates present from the same Assembly district shall select a person to fill the vacancy.” The record shows that there were also present at the convention from the Eighth Assembly District, Bronx, fourteen duly certified [399] alternate delegates who had been chosen at the primary election. At the convention meeting, no objection was made by any of these alternates or by any other person present to the choice of the eleven delegates from the list of the fourteen who had been tied for the positions. If such objection had been there interposed, eleven of the fourteen duly accredited alternate delegates from that district could readily have been substituted. Even assuming that a vacancy in the office of delegate to the judicial convention might have been filled at a meeting called for that purpose by a majority of a quorum of the members of the County Committee from the Eighth Assembly District, Bronx, or of the counties comprising the First Judicial District (Election Law, § 139), such action was never taken. The vacancies admittedly existed on the night the convention was convoked. Such vacancies could then only be filled in the manner provided in subdivision 1 of section 132 of the Election Law heretofore quoted. An alternate delegate at a judicial convention named in the official roll call may be called upon to act when a vacancy occurs no matter what the cause of the vacancy. It would undoubtedly have been proper, also, to have the vacant places taken by certified alternates, of whom there were fourteen present who were qualified to act, but no one of the duly certified alternates claimed the right to act. In the situation here, the presence of these duly certified alternates at the convention, together with the other lawfully elected delegates and certified alternates, could properly be regarded as constituting the necessary quorum. If the alternates were present when the convention was called to order, there was a clear quorum. If they be deemed absent because taking no part in this convention, their places were properly filled as provided in subdivision 1 of section 132 of the Election Law. In any view of the situation there Was present a quorum, that is, “a majority of the delegates or respective alternates named in the official roll.” (Election Law, § 132, subd. 2.) We find that the convention was constituted and conducted in accordance with the statute and in conformity with the party rules and that the nominations made thereat were valid. The order should, accordingly, be affirmed. In the first proceeding: Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ. In the second proceeding: Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.; Untermyer, J., dissents and votes to reverse.