
    In the Matter of the Application of Francis P. Coughlin, Appellant, to Review, Pursuant to Section 70 of the Election Law, the Action and Neglect of the Inspectors of Primary Election in and for the Various Election Districts in the Thirteenth Assembly District of the City, and County of New York, Who Acted as Such at the Primary Election of the Democratic Party Held on September 21, 1909, and to Have the Said Election Declared to Be Fraudulent, Illegal and Void, and for Other, Further or Additional Relief, as May Be Found to Be Necessary and Adequate, as Prescribed by the Said Election Law, and by Law. The Board of Elections of the City of New York and Others, Respondents.
    First Department,
    March 11, 1910.
    Election—primary election—judicial review under section 70, Election Law — when court will not act.
    Section 70 of the Election Law confers on the court broad summary power to correct fraudulent practices and to compel fair conduct at primary'elections. The court in a proper case has power to set aside summarily a fraudulent primary election and to order a new election, but the exercise of the power rests in its sound discretion.
    The court will not act to correct illegalities in a primary election where the only effect thereof was to increase the majority of a candidate who would have been elected irrespective of the fraud.
    Appeal by the petitioner, Francis P. Coughlin, from an order of the Supreme Court, made at the New York Special Term and entered-in the office of the clerk of the county of New York on'the 15tli day of December, 1909.
    
      Edward A. Alexander, for the appellant.
    
      Theodore Gonnoly, for the respondent, City of New York.
   Scott, J.:

This is an appeal from an order of the Special Term denying the petitioner’s application for a summary order under section 70 of the Election Law (Laws of 1909, chap. 22, constituting chap. 17 of the Consolidated Laws).

The applicant was a candidate for membership in the county general committee of the Democratic party in the thirteenth Assembly district of the county of Hew York at a primary convention held on the 21st of September, 1909. His name headed the list of candidates.' His opponent heading the list of candidates for the opposing faction was one John F. Curry. The thirteenth Assembly district comprises-twenty-three election districts, in each of which the primary election was conducted. The result of the election, as declared by the canvassers, was that the ticket headed by the petitioner-received 419 votes and the ticket headed by Curry received 2,718 votes.'

The' petitioner claims that gross frauds and irregularities were .committed by the officers in charge of the primary election in several of the polling places in which the primary election was held, and--these he specifies with some detail. His allegations-.in this regard are met' by somewhat feeble and unconvincing denials.

The statute under which the petitioner seeks relief reads as follows:

“ § 70. Jurisdiction of, and review by, the'courts. Any. action or neglect of the officers or members of a political convention or committee, or of any inspector of primary election, or of any public officer, or board, with regard to the right of any person to participate in a primary election, convention or committee, or. to enroll with any party, or with regard to any right given to, or duty prescribed for, any voter, political committee, political convention, officer or board, by this article, shall be reviéwable by the appropriate remedy of mandamus or certiorari, as the case may require. In addition thereto, the Supreme Court, or. any justice thereof within the judicial district, or any county judge within his county, shall have summary jurisdiction, upon .complaint of any citizen, to review such action or neglect. Such a complaint shall be heard upon such notice as the said court or justice or judge thereof shall direct. In reviewing sucli action or neglect, the court, justice or judge shall consider, but need not 'be controlled by, any action or determination of the regularly constituted party authorities upon the questions arising in .reference thereto, and shall make such decision and order as, under all the facts and circumstances of the case, justice may'require. For any of the purposes of this'section, service of a writ of mandamus, certiorari, order or other process of said court or justice or judge thereof upon the chairman or secretary of such convention, committee or board, shall be sufficient.”

This section is very broad and confers wide summary powers upon the court, the purpose clearly being to enable the court 'to act promptly to correct fraudulent practices and compel fair conduct of primary elections. So far as concerns the right of any person to participate in a primary election, or to enroll or to exercise any right with regard to such elections, the court may issue a writ of mandamus or certiorari. Neither of these remedies would be appropriate to the facts upon which the petitioner relies. It is, however, within the power of the court, in a proper case, to summarily set aside a fraudulent primary election and order that a new election be held. (Matter of Rabbitt v. Garand, 89 App. Div. 119.) Such is the clear intention of the section quoted above. Whether the court, having the power, will exercise it rests in its sound discretion and must be determined in each case by the facts of that particular case. The section is not punitive, but corrective and designed merely to cancel unlawful proceedings which have resulted or may have resulted in the declaration of a false result. If upon the application itself it appears reasonably clear that the unlawful acts complained of could not have affected the result of the election, and at most only served to swell the apparent majority of the successful candidate, a case is not presented in which the court is bound to act. Such is the case made by the present applicant. Disregarding his general allegations and considering only the particular districts which he specifies as those in which fraudulent practices prevailed, it is apparent that these frauds, if they existed precisely as he alleges, could not have affected the general result. We are, therefore, of the opinion that no case was presented for a summary order under the section above quoted and that the application was properly denied.

Clarke, McLaughlin, Lattghlin and Dowling, JJ., concurred.

Order affirmed.  