
    In the Matter of The People of the State of New York ex rel. James F. McGrath, Appellant, v. John T. Dooling and Others, Constituting the Board of Elections of the City of New York, and Others, etc., Respondents.
    Second Department,
    November 3, 1910.
    Election—mandamus to compel the board of elections to accept certificate of nominations —writ denied where former nomination valid.
    Where an original certificate of nomination has been held to be valid notwithstanding the fact that the person designated to call the convention to order was not present owing to illness, the court will not compel the board of elections to accept a second certificate made at a subsequent convention where the time for filing the certificate of the original nomination has expired. Under such circumstances the court will issue mandamus requiring the board of elections to print the names of those nominated at the first convention upon the official ballot. , ■ ■
    
      Charles H.\ KeTby, |pr the appellant.
    
      James D. Bell and B. N. Manne, for the respondents.
   Per Curiam:

After the decision of the Special Term in the Haugh case on' October 26, 1910,- the delegates elected to the Assembly convention again assembled, William J. Smith, the person designated to call the convention to order, was- present, and called it to order, the choice of a temporary chairman was made upon proper roll call, and the convention took such action as resulted in the nomination of Joseph A. Yan Wyrien for the office of Assemblyman in question. . The' certificate of such nomination was presented to the board of eléetions, who refused to receive the- same upon the. ground that the time for filing certificates of original party nominations had expired on October fourteenth.- (Election Law [Consol. Laws, chap. 17;. Laws of 1909, .chap. 22], § 128.) This proceeding was brought to obtain a peremptory writ of mandamus to compel the said board to accept such certificate of nomination, and for such other and further relief as might lié just. The motion was denied at the Special Term, and from the order entered on such decision this appeal is taken.

In view of our decision in. Matter of Haugh (141 App. Div. 26), decided herewith, it is unnecessary for us to consider whether, if the original action of. the convention had been-invalid, its subsequent action could be sustained. As the original certificate of nomination . has been held to be valid, it is not necessary to require the board of elections to accept, the second certificate,if we had the power to do -.so. The application, therefore, for so much of the relief prayed for may be .denied.

To save any possible question, however, we have concluded, to direct that a mandamus issue requiring the board of elections to .print upon the official ballot the name of Joseph A. Yan Wynen as the candidate of the Republican party for the office of Assemblyman in the eighth Assembly district in the county of Kings.

The order appealed from should be thus modified, and as so modified affirmed, without costs. '

Jenks, Burr, Thomas and Carr, JJ., concurred.

Order modified so as to direct that a mandamus issue requiring the board of elections to print upon the official ballot the name of Joseph A. Van Wynen as the candidate of the Republican party, and as so modified affirmed, without cost's.  