
    In the Matter of Eugene B. Sullivan, Petitioner, against Howard Cohen et al., Individually and as Members of the Board of Elections of the City of New York, et al., Respondents.
    Supreme Court, Special Term, New York County,
    August 22, 1944.
    
      David S. Romanov for petitioner.
    
      Ignatius M. Wilkinson, Corporation Counsel (William Fleming of counsel), for respondents.
   Aurelio, J.

This is a proceeding pursuant to article 78 of the Civil Practice Act to direct the Board of Elections of the City of New York and the Board of Central Registration in New York .County to register and permit the enrollment of the -petitioner Eugene B. Sullivan, who is a captain in the United States Army.

Petitioner, a resident of the County of New York, was refused registration solely on the ground that, being a member of the armed forces, he may be absent from his election district on election day and therefore may only register asa“ war voter by applying for a war ballot by mail. Has the petitioner the alternative right to register personally through the Board of Central Registration? I believe he has that right. It is apparent from an examination of article 12 of the Election Law that its basic purpose is an endeavor to assure the opportunity to vote to members of the armed services not able to be present in person on election day. It was not intended to prevent members of the armed forces from registering personally in the manner available to all citizens qualified to vote.

There are thus two methods of registering and voting open to a person in the armed forces. If he is present in person, he may register and vote as any other qualified citizen; if he believes that he will be unable to be present in the election district of his residence on the day of election, he may apply to vote by the war ballot method. The decision as to which means of registration he will pursue lies with the individual, not with the Board of Elections, the Board of Central Registration or with any of the members of these Boards.

Petition granted to the extent herein indicated. Settle order on one day’s notice.  