
    In the Matter of the Application of Bernard Lazarus. In the Matter of the Application of John M. Harding.
    First Department,
    November 2, 1910.
    Election—-seating- delegates — powers of convention — review by court — order -that delegates be seated must be obeyed — order not open to collateral attack.
    - Under the statute a political convention has the right to decide all questions as to the delegates to that convention.
    But the Supreme Court has power to review the action of the convention in seating delegates, which review may be based upon such notice as the court shall direct.
    The court has jurisdiction to determine whether or not the act of the convention in changing delegates and seating other delegates was proper.
    Where the court has determined that a convention improperly refused to seat delegates and has improperly seated other delegates, theofficers upon whom the order is served are bound to obey it. Hence, where the other delegates have been seated pursuant to tbe'order of the.court, the acts of the convention cannot be attacked upon the ground that the order was obtained by fraud. Such order must be obeyed so long as it stands, even though it might have been attacked for collusion or fraud.
    Although two delegates seated by order of the court were improperly seated, the nominations made by the convention are not open to cóllateral attack on that ground.
    Appeal from an order of the Supreme Court, made at the New York Special Term.
    
      Abraham G. Meyer and H. R. Limburg, for the appellant.
    
      Julius M. Mayer and H. Crone, for the respondent.
   Per Curiam :

The court is unanimously of the opinion that the statute gives to the convention the right to decide all questions as to the delegates to that convention. But the statute also provides that any action or neglect with regard to any right given to, or duty prescribed for, any voter, political committee, political convention, officer or board by article 3 thereof, shall be reviewable 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. (See Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], §§ G8-70.)

Under that, the Supreme Court had power to review the action of the convention in seating these delegates. The statute also expressly provides that that review shall he based upon' such notice as the court shall direct. Under these circumstances, the court had jurisdiction to determine whether or not the act of changing the delegates and seating other delegates was proper, and had power to review the action of the convention.

The court assumed to exercise that power. It determined that the convention had improperly refused to seat two delegates, and had improperly seated other delegates.

That order was presented to the convention. The officers were bound to obey it, and their obeying it certainly did not invalidate their action.

Counsel for the respondent says the order was obtained by fraud. The distinction between the fraud that will justify a refusal to obey an order, and the fraud that will justify a direct attack upon the order, seems to have been lost sight of. This whole question of fraud in this application would not justify disobedience of that order. Clearly, if the convention had seen fit to refuse to obey it, it would have been the duty of the court on these facts to have punished the officers for such a refusal, and they would also have been guilty of a misdemeanor. (See Penal Law, § 751.) The mere fact that they did what they would have been guilty of a crime for not doing — recognized the order and seated those whom the order directed them to seat as members of the convention ■—• would not, upon any principle that we can think of, make the action of the convention void.

It might very well be that if Mr. Justice McCall had known as much about existing conditions as we now know, he would not have granted that order. If that order had been attacked directly by a person interested on a motion to vacate on the ground of collusion or fraud, it might be that order would have been vacated. But as long as it stands it had to be obeyed, and obedience to it did not render the convention or the nomination invalid.

We think, therefore, that these orders cannot stand.

In addition, the mere fact that two of the delegates were improperly seated would not of itself'make the nomination void on a collateral attack in this way. It necessarily must be so, or else no nomination would be of any use, because parties might well show in every instance of an attack upon a nomination that but for fraud in the election, or fraud in something else, other delegates would have been elected who would have voted the other way. Such an attack cannot be sustained.

We think that both these orders sliould be reversed and the decision of the board of elections sustained:

Present. — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ.

Orders reversed and action of board of elections confirmed.  