Primary Election Law (L. 1898, ch. 179), § 3, subd. 12.

livered in pursuance of subdivision seven of this section. (Subdivision added by L. 1904, ch. 350, in effect April 16, 1904.)

Subd. 12. This subdivision shall apply only to cities containing a population of one million or over. If any person is not in sympathy with the principles of the political party with which such person is enrolled, any elector of the assembly district in which such election district is located (provided such elector is himself duly enrolled with the same political party with which the person, as to whom the application is made, was enrolled) may present proof thereof by affidavit to the chairman of the county general committee of the political party, with which the elector enrolled, and the chairman of such county general committee shall issue a notice requiring the person against or as to whom the proceeding is instituted, to show cause before such chairman of the county general committee, or a subcommittee appointed by such chairman, at a time and place specified in such notice why his name should not be stricken from such enrollment book. Such notice shall be returnable on a day at least fifteen days before a primary election, and a copy of the affidavit shall be served on the person against whom the proceeding is instituted and on the custodian of primary records at least forty-eight hours before the return thereof, either personally or by depositing the same in the postoffice of the city in which such election district is located, in a postpaid wrapper or envelope addressed to the custodian of primary records at his office, and to such person by his name at his present address, if known, and otherwise at the address which appears in the enrollment book for such election district. The chairman of such committee shall in his discretion personally hear the persons interested in the proceeding or appoint a subcommittee to take testimony, and in such event the action of the subcommittee shall not be final unless approved of by the chairman of such county general committee, and if it appears by sufficient evidence that such person is not in sympathy with the principles of the political party with which such person enrolled, the chairman of the county general committee shall cause to be filed a certificate with the board of elections or with the custodian of primary records setting forth reasons why the name of such person shall be stricken from the enrollment book, together with a record of the proceedings had in the matter. It shall be the duty of the board of elections or the custodian of primary records to make application to the

Primary Election Law (L. 1898, ch. 179), §§ 8, 9.

supreme court or to any justice thereof in the judicial district in which such election district is located, or to a county judge of the county in which such election district is located, for an order requiring the person against or as to whom the proceeding is instituted, to show cause before such court, justice or judge, at a time and place specified in such order, why the decision of the chairman of such county general committee should not be confirmed. Such order shall be returnable on a day at least five days before a primary election, and a copy thereof shall be served on the person against whom the proceeding is instituted at least forty-eight hours before the return thereof in a manner as herein before provided. The court, justice or judge upon approving of the finding of the chairman of such county general committee shall issue an order to the board of elections or to the custodian of primary records requiring the name of the elector to be stricken from the enrollment book. (Subdivision added by L. 1904, ch. 488, in effect April 28, 1904.)

§ 8, subd. 4. Canvass of votes. (C. & G. Gen. Laws, p. 1325.)

Canvass of votes by board of elections in city of New York.- The board of elections of the city of New York as custodian of primary records cannot be compelled by the Supreme Court to recount ballots returned by boards of primary inspectors as void and protested, and determine whether or not those ballots, alleged to be lawful were counted, and, if not counted, add them to the returns and canvass them. The power of the board of elections in such matters is ministerial only. Matter of Rush, 42 Misc. 70, 85 N. Y. Supp. 581.

§ 9, subd. 1. Committees, and rules and regulation of parties. -Each party shall have a general committee for each county, except that in the city of New York there may be, in lieu of, or in addition to, a general committee for each county wholly therein, a general city committee or general borough committees, or both, as the rules and regulations of the party may prescribe, and except that in each city other than said city of New York and cities of the first class, if it be desired by a majority of the members of such general committees elected from the wards of such city, there shall be for such city a city committee to consist of such members so elected from such wards, who shall have power to perfect their own organization under such rules and regulations as they may prescribe for the conduct of the affairs of such part affecting such

Primary Election Law (L. 1898, ch. 179), § 9.

city and the wards thereof. Any party may also have committees in and for such other political subdivisions as its rules and regulations may prescribe. All members of general committees, and assembly district and ward committees, chosen in or from cities of the first class, except as otherwise herein provided, shall be elected at the primary elections, on the annual primary day of each year. In the other cities and villages to which this act is applicable, except as otherwise provided in this act, there shall be elected at the primary elections on such day either the members of all general committees elected from such cities or villages, or the members from such cities or villages of the conventions or committees by which members of the general committees are to be appointed, and in such cities and villages the rules of the parties may determine whether members of general committees shall be elected at primary elections or by conventions or committees the members of which shall be elected on the annual primary day as above provided, or by conventions or committees which shall have been chosen by delegates who shall have been elected on the annual primary day as above provided. The times when committees elected at primary elections shall take office shall be determined by the rules and regulations of the respective parties, except that such time shall not be later than the first day of January succeeding their election. On the day fixed by the rules and regulations, constitutions or by-laws of the party, the members of each general county committee or city committee shall meet and organize. They may proceed to make and adopt rules and regulations, but unless so adopted, the rules and regulations adopted by the last preceding county or city committee of said party in said county or city shall remain in full force and effect until repealed or amended in accordance with the provisions of this act. Members of committees shall be apportioned among the various units of representation entitled to representation therein according to the rules hereinafter prescribed for the apportionment of delegates to conventions. Members of committees in villages shall be apportioned and shall hold office as shall be provided in the rules and regulations of parties. Each county or city committee and the officers thereof shall have all the power and authority and shall perform all the duties, in respect to the nominations of officers to serve at general elections, conferred upon the general committee, the county committee, the city committee, the executive committee, or the officers thereof, given to any party in such city or county by

Primary Election Law (L. 1898, ch. 179), §§ 10, 11.

section twelve of the election law. (Amended by L. 1901, ch. 167, and L. 1903, ch. 595, in effect May 13, 1903.)

§ 10. Conventions. (C. & G. Gen. Laws, p. 1328.)

Adjourned convention.— Where it appears that the chairman of a nominating convention put a motion to adjourn, before the completion of a roll call, and in spite of much noise, confusion and many protests, decides it to have been carried on a viva voce vote, it was held that there was no certainty that the motion was duly carried, and that therefore a majority of the duly elected delegates and substitutes, who make affidavit that they voted against the motion, are entitled to continue the proceedings under a new chairman. Matter of Kennedy, 36 Misc. 721, 74 N. Y. Supp. 369.

Rules regulating the filling of vacancies.

A county committee has power to adopt a rule providing that a vacancy in that body created by the resignation of a member thereof shall be filled for the unexpired term by a majority vote of the sitting delegates from the assembly district in whose delegation such vacancy occurred. People v. Republican General Committee, 63 App. Div. 438, 71 N. Y. Supp. 528.

§ 11. Review by courts. (C. & G. Gen. Laws, p. 1330.) Review of action of custodian of primary records. The duty imposed upon a custodian of primary records to deliver a certificate of nomination to the person who is shown to have been nominated by the statement filed in his office is ministerial and not judicial. He cannot receive or act upon evidence tending to explain, vary or contradict such statement. The court cannot, in proceedings brought under the above section to review the action of the custodian in respect to such certificate, receive or consider such evidence. People ex rel. Calihan v. Hunt, 75 App. Div. 33, 77 N. Y. Supp. 973.

Mandamus to compel recognition as member of committee.— The general committee of a party in a county cannot be compelled by mandamus to recognize a person as a member of the committee and also as a member of the executive committee where it appears that such person has not been denied his rights as such member and no demand is made that any specific person should be recognized as such member. People ex rel. Garvey v. Democratic Committee, 175 N. Y., 415, affirming, 82 App. Div. 173, 81 N. Y. Supp. 784.

A justice of the Supreme Court sitting in chambers cannot review the action or alleged neglect of the mayor of a city in appointing certain election officers in such city under the authority granted by the above section. The designation of election officers is in accordance with section 12 of the Election Law, and the summary jurisdiction given to justices in the above section of the Primary Election Law only relates to the review of the action or neglect of a public officer or board with regard to a right given or duty prescribed by that act. Matter of McShane v. Murphy, 86 App. Div. 566, 83 N. Y. Supp. 1018.

Enrollment in towns (L. 1902, ch. 195), § 1.

Power of court. The Supreme Court may set aside the statement of a canvass of votes cast at a primary election fraudulently made by a board of inspectors, adjudge the true result, direct the board to reconvene and make and file a statement of the result as so adjudged, and direct the issue of certificates of election to the candidates lawfully elected. Matter of Rabbit v. Garand, 89 App. Div. 119, 85 N. Y. Supp. 473.

§ 13. Option to certain parties. (C. & G. Gen. Laws, p. 1331.)

Social Democratic party not having cast three per cent. of the entire vote for governor in 1900 is not subject to the provisions of the Primary Election Law. Matter of Ward, 36 Misc. 727, 74 N. Y. Supp. 403.

(3) Metropolitan election districts.

L. 1898, ch. 676, § 7. Assistance of public officers. (C. & G. Gen. Laws, p. 1351.)

Refusal to answer questions.

The power given to deputies appointed under the above act to investigate questions relating to the registration of voters, and for that purpose to interrogate any inmate or proprietor of any house, as to any person residing or claiming to reside therein, cannot be exercised until after registration; it is, therefore, not a misdemeanor for an inmate of a lodging house to refuse to answer questions before he has registered. People ex rel. Maher v. Carleton, 41 Misc. 523, 85 N. Y. Supp. 22.

Assisting in escape of elector.-A conviction under an indictment charging a person with assisting in the escape of a registered elector, who, when he attempted to vote, was arrested by a deputy superintendent of elections on the charge of having falsely registered, cannot be sustained in the absence of proof that the person whom the deputy superintendent had arrested was actually guilty of the crime of false registration. People v. Hochstim, 76 App. Div. 25, 78 N. Y. Supp. 638, 986, rev'g 36 Misc. 562, 73 N. Y. Supp. 626.

(4) Enrollment in towns.

L. 1902, ch. 195. An act to provide for the enrollment of members of political parties in towns. [In effect March 21, 1902.]

§ 1. Application. This act shall not apply to any of the counties embraced within Greater New York, nor to cities of the second or third class, nor to any village which shall be or become subject to the provisions of chapter four hundred and seventy-three of the laws of eighteen hundred and ninety-nine, entitled "An act tọ amend chapter one hundred and seventy-nine of the general laws of eighteen hundred and ninety-eight, entitled 'An act in relation to the enrollment for political parties, primary elections, conven