ceived and filed if 5 per cent. of the names thereon are fraudulent, and such names cannot be counted in either place in which they appear. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 143.* For other definitions, see Words and Phrases, vol. 3, pp. 2957-2959.] In re objections to a nomination certificate for mayor of the city of Cohoes. Certificate declared void. Charles Templeton, of Albany, for objectors. CHESTER, J. Although the objector insists that the statute requires 800 electors to make a valid certificate for the independent nomination for mayor, it may be assumed for the purposes of this case that 500 only are requisite as claimed by the counsel for the respondent. The certificate in question bears 548 names of persons on 63 separate sheets who appear to have taken the oath prescribed by law. Of these 23 are names of persons who are not registered so as to entitle them to vote at the ensuing election, and 7 are duplications or names of persons who have signed twice. It is urged by the objector that all these names are subject to the provision of the Election Law (Consol. Laws 1909, c. 17) § 123, that: "No separate sheet comprising an independent certificate of nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such sheet are fraudulent or forged." This is a drastic provision, and is aimed at procuring honesty in the preparation and filing of these certificates. Its validity has been upheld by the courts. Matter of Terry, 146 App. Div. 520. 131 N. Y. Supp. 841, affirmed 203 N. Y. 293, 96 N. E. 931. [1] I cannot agree, however, with the contention of the objectors that this 5 per centum rule can properly be made to apply to the signers who have failed to register, primarily for the reason that the statute itself provides what the effect of such failure shall be, and that is that his name shall not be counted. Election Law, § 123. The failure to register might arise from causes entirely beyond the control of the person signing, and for which the persons instrumental in procuring signatures to the certificate were in no wise responsible. I conclude, therefore, that I would not be warranted in holding such failure to be a legal fraud within the meaning of the clause quoted. Twenty-three names only should be deducted from the certificate on this account. [2] I think that the duplications of names must be regarded as fraudulent under the statute, and that the 5 per centum rule applies. It may be conceded that most of these electors did not intend, as most of them have testified, to sign twice, and that they did not intend to commit any wrong by so doing, yet that should not change the rule. It is the act, and not the intent, sworn to after *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the discovery of the act, that should govern. The law will not sanction repeating upon a certificate for independent nominations any more than it will at a primary or at an election. An inspection of the certificate would at once reveal to a careful observer the duplication of the names, and yet no adequate precautionary measures were taken to prevent a duplication of names on the certificate, nor to erase any of them therefrom before it was filed. The burden is on those instrumental in procuring the execution of certificates like this to keep them free from dishonesty and fraud if they are to save them from the effect of the drastic provisions of the statute which have been made to safeguard the public interests. The duplication of the names being fraudulent within the meaning of the statute, they cannot be counted in either place where they appear, and all the names on every separate sheet upon which 5 per centum of such names appear must be eliminated in the count. These 7 duplicated names appear on 11 separate sheets_con-' taining 110 other names, on each of which sheets except two 5 per centum of the names are fraudulent. The two excepted sheets contain 42 names, leaving 68 to be deducted besides 14 for the 7 duplicates or 82 on this account. To these must be added the 23 who failed to register, making 105 all told to be deducted from the 548 contained on the certificate leaving it short of the requisite number, even if 500 only are necessary. The certificate must therefore be declared void. (78 Misc. Rep. 86.) In re OBJECTIONS TO NOMINATION CERTIFICATE OF ARCHIBALD FOR ASSESSOR OF CITY OF COHOES. (Supreme Court, Albany County, at Chambers. October 25, 1912.) ELECTIONS ( 143*)—INDEPENDENT CERTIFICATE OF NOMINATION-FRAUDULENT SIGNATURES. Where a certificate of nomination contains 549 names on 70 separate sheets, and 27 are names of persons not registered, and 9 are duplications, which appear on 10 separate sheets, on each of which 5 per cent. of the names are fraudulent, the certificate is void. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 143.*] In the matter of objections to nomination certificate of Andrew Archibald, Jr., filed for the nomination of assessor of the city of Cohoes. declared invalid. Charles Templeton, of Albany, for objectors. Certificate CHESTER, J. The certificate contains 549 names on 70 separate sheets. Of these 27 are nanies of persons not registered and 9 are duplications. The duplicated names appear on 10 separate sheets containing 88 other names, on each of which 5 per centum of the names are fraudulent. Applying the principles stated in the Matter of William Baillee, Candidate for Mayor, 137 N. Y. Supp. 957, decided herewith, there must be deducted 27 names of persons not registered, 18 for duplicated names and 88 under the 5 per centum rule, a total of 133, leaving but 416 upon the certificate to be counted. The certificate must be declared void. (78 Misc. Rep. 87.) In re OBJECTIONS TO NOMINATION CERTIFICATE FOR ALDERMEN IN CITY OF COHOES. (Supreme Court, Albany County, At Chambers. October 25, 1912.) CONSTITUTIONAL LAW (§ 48*)-CONSTITUTIONALITY OF STATUTES. A statute should not be held unconstitutional, especially by a justice sitting at Special Term or at chambers, unless the question is free from doubt. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48;* Statutes, Cent. Dig. § 56.] In re nomination certificate for aldermen in the city of Cohoes. Certificates declared invalid. Charles Templeton, of Albany, for objectors. Walter H. Wertime, of Cohoes, for respondents. CHESTER, J. In applying the principles enunciated in Matter of Bailee, 137 N. Y. Supp. 957, decided herewith, the following results are obtained: In the Second ward case there are 115 names on 19 separate sheets. Of these 10 are not registered voters and 6 are duplicated. The duplicated names appear on 8 separate sheets containing 46 other names, on each of which sheets excepting one containing 21 names the 5 per centum rule must apply. A deduction of 47 names must be made leaving 68 to be counted. In the Fourth ward case there are 111 names on 29 separate sheets. Of these 5 are not registered, 1 is not a resident of the ward, and 1 is duplicated. The duplicated name appears on two separate sheets containing 10 other names, on each of which the 5 per centum rule must apply. A deduction of 18 names must be made, even though the 5 per centum rule is not applied to the sheet where the nonresident has signed. It is not necessary to determine that question in this case. Only 93 names are properly to be counted in this case. In the Fifth ward case there are 101 names on 25 separate sheets. Of these 2 are not registered, and 1 is a nonresident of the ward, leaving only 98 names to be counted, without applying the 5 per centum rule to the sheet where the nonresident has signed. In the Sixth ward there are 104 names on 19 separate sheets. Of these 3 are not registered, 1 is a nonresident of the ward, and 4 are duplications. The duplicated names appear on 7 separate sheets containing 47 other names, on each of which the 5 per centum rule must apply. Fifty-nine names must be deducted, leaving 45 only to be counted. It is claimed by the respondents that the provision of the Election Law (Consol. Laws 1909, c. 17, § 122), requiring 100 voters to join in making an independent certificate for the nomination of a candidate for ward officers in a city, is unconstitutional because being unreasonable. This provision in the law is not a recent one, and the statutes have to be examined back to chapter 680 of the Laws of 1892, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes where in section 57 a less number is required. Under the amendments to this section in 1896 (chapter 909), of 1899 (chapter 363), and 1901 (chapter 604) 100 names have been required. It does not appear that during all these years when that number have been required any judicial determination has been made that the number is unreasonable. It is a well-settled principle that a provision of law should not be held unconstitutional, unless the question is free from doubt, and especially not by a justice sitting at Special Term or at chambers. I do not think under the evidence in these cases in respect to the number of registered electors in these several wards that I would be justified in holding the requirement of the statute to be so unreasonable as to render the unconstitutionality of the provisions free from doubt. I think, therefore, that the provision of the statute requiring 100 names must govern. This being so, it results in a determination that each of the four certificates in question purporting to nominate independent candidates for aldermen in these several wards is insufficient, and that each of such certificates must be declared to be invalid. GOLDSTEIN v. MASON SEAMON TRANSP. CO. (Supreme Court, Appellate Term, First Department. November 8, 1912.) COURTS (§ 189*) DISMISSAL FOR NONAPPEARANCEOPENING DEFAULT. MUNICIPAL COURTS The dismissal, for nonappearance of the parties, of a cause which the parties had stipulated to adjourn, did not terminate the court's jurisdiction, and it could open the default and vacate the judgment of dismissal, and should have done so, where no good reason was shown in the affidavits opposing the motion for not opening the default. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*] Appeal from Municipal Court, Borough of Manhattan, First Department. Action by Morris Goldstein against the Mason Seamon Transportation Company. From an order denying a motion to vacate a judgment of dismissal and open plaintiff's default, he appeals. Reversed, and cause restored to the calendar. Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ. Greenbaum & Rifkind, of New York City, for appellant. Corbitt & Stern, of New York City (George Feinberg, of New York City, of counsel), for respondent. PER CURIAM. After issue was joined in this action, and several adjournments were had, the attorneys for the respective parties entered into a written stipulation adjourning the case from March 20 until April 3, 1912. This stipulation was made on March 18th, two days before the day set for trial. On March 20th, neither For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-61 side appearing in court to answer the call of the calendar, the case was dismissed. The plaintiff thereafter moved upon notice to open his default and vacate the judgment of dismissal, which motion was denied. The court below did not lose jurisdiction of the case by reason of the dismissal. Johnson v. Monahan, 47 Misc. Rep. 689, 94 N. Y. Supp. 351. No good reason was shown, in the affidavits opposing the motion to open the default, why the same should not have been granted, and the order must be reversed. Order reversed, and cause restored to the calendar, with costs to the appellant to abide the event. (78 Misc. Rep. 165.) TULLY v. NEW YORK TIMES CO. (Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. PLEADING (§ 129*)-ADMISSIONS. Under Code Civ. Proc. § 522, providing that each material allegation of the complaint, not controverted by the answer, will be taken as true, the answer in libel, by not denying publication, admitted it. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 270–275; Dec. Dig. § 129.*] 2. PLEADING (§ 94*)-ANSWER-SEPARATE DEFENSES. Each separate defense should be tested by its own allegations. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 191, 192; Dec. Dig. § 94.*] 3. LIBEL AND SLANDER (§ 94*)-JUSTIFICATION-SUFFICIENCY. Where the alleged libel was the making of a statement that plaintiff swore that her father was dead, but that the father appeared in court at the time, and that plaintiff knew throughout the trial that he was living, a justification, showing that plaintiff swore that her father was dead merely on information and belief, and that she knew that he was then living, was as broad as the alleged libel, and sufficient. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 219225; Dec. Dig. § 94.*] 4. LIBEL AND SLANDER (§ 94*)-JUSTIFICATION-SUFFICIENCY. A justification in libel must be as broad as the libel. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 219225; Dec. Dig. § 94.*] Appeal from City Court of New York, Special Term. Action by Mary Tully against the New York Times Company. From an interlocutory judgment, sustaining a demurrer to a part of the answer, defendant appeals. Reversed, and demurrer overruled. Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ. Leventritt, Cook & Nathan, of New York City (Alfred A. Cook, of New York City, of counsel), for appellant. William F. Unger, of New York City, for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |
