
    In the Matter of the Application of Charles T. Joslin, to Review Proceedings Taken to Call the Primary of the Democratic Party to be Held in the Town of New Scotland on the 19th Day of September, 1911.
    (Supreme Court, Albany Special Term,
    September, 1911.)
    Election of officers: Nominations and preparation of official ballot — Primary — Notice; Committees: Review by court — Decision — Promoting justice.
    Under the rules of the Democratic General Committee of the county of Albany, the chairman of the executive committee has no power to appoint as chairman of the town committee in one of the towns of said county one who is not a member of the town committee of such town, upon the failure of the regularly appointed chairman of such town committee to post notices of a primary election within the time provided by law.
    A notice of a primary election, given after the prescribed time by the chairman thus irregularly appointed, is ineffective for any purpose; and "a justice of the Supreme Court whose summary powers under the Election Law are invoked will, in the interests of justice, approve the act of the majority of the town committee in repudiating such notice and themselves giving notice of a primary election.
    Application to invoke the summary powers, under the Election Law, of a justice of the Supreme Court.'
    John A. Stephens, for appellant.
    Daniel J. Dugan, for respondents.
   Chester, J.

The applicant invokes the summary powers of a justice of the court to review the proceedings taken to call the primary which under the law is to he held in the ttiwn of Hew Scotland to-morrow, the 19th day of 'September, 1911. The respondent challenges' the jurisdiction of the justice to exercise such summary powers. Substantially the same preliminary objections have been overruled by me in several prior proceedings in unreported cases, and I see no' reason, after hearing the -argument of counsel in this ease, for not adhering to my former rulings.

Under the rules of the Democratic General Committee of the County of Albany, it is provided that such committee shall consist of one member from each election district in the county and that the members of the general committee residing within the town or ward shall constitute the town or ward committee. There are three election districts in the town of Dew Scotland, and consequently three members of the general committee from that town. Such rules also provide that “ the chairman of the town committee shall be named by. the chairman of the executive committee before each primary.” Under this authority the chairman of the executive committee, on the fourteenth day of September, appointed Chester J. Long, a member of the town committee representing the third district of the town, as chairman of the town committee. He was temporarily absent from home at the time of the appointment, in attendance at the State Fair, and, therefore, failed to issue and post a call as provided by the rules, within the time required. On the next day,. September fifteenth, the chairman of the executive committee assumed to appoint one John Cummings, who was not a member of the town committee, chairman thereof; and said John Cummings on that day posted notices, signed by him as chairman of the town committee, calling a primary election to be held at the Globe Hotel at Yoorheesville at seven thirty d’clock p. m. on September nineteenth. Myron B. Earl and the petitioner, Joslin, the two members of the town committee other than Long, refused to join in such call signed by Cummings, and on the same day, September fifteenth, posted a call signed by them as committeemen for a primary to be held at Houck’s Hotel in Clarksville at two p. m., September nineteenth.

It seems to me very clear that the assumed appointment of Mr. Cummings as chairman of the town committee by the chairman of the executive committee cannot be upheld. He was not at the time a member of the town committee. He had received no commission from the Democratic electors of the town to act as such; and the chairman of the executive committee had no more power to appoint him as chairman of the town committee than he would have had, in the first instance, to have appointed him a member of the town committee for his district, or of the general committee of the county. If an appointment by the chairman of the executive committee would be ineffective to constitute him a member of the committee from his district, so also would it be ineffective to make him chairman of a committee of which he was not a member. For these reasons the notice posted by Mr. Cummings cannot be given any effect.

The respondent’s counsel also insists that the notice posted by the petitioner and Mr. Earl as members of the town committee is also void. That would undoubtedly be so if the member of the town committee who was appointed chairman thereof had given timely notice of a primary. But section 70 of the Election Law authorizes the justice to make such order as, under -all the facts and circumstances of the case, justice may require. The Democratic electors of- the town" should not be left without the opportunity to participate in a primary and, as a majority of the members of the town committee, after the failure of a duly appointed chairman to do so, have taken the responsibility of giving notice of a time and place for holding one on the legally designated primary day, I see no reason why I should not approve the act of such majority in giving such notice.

The prayer of the petitioner should be granted.

Application granted.  