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 the manner hereinbefore provided. The said court, justice or judge shall have the power to examine fully into the proceedings taken before such chairman or subcommittee and to receive affidavits or other evidence as to the manner in which such proceedings were conducted, and shall determine whether or not said proceeding was fairly conducted and the finding made therein was made upon sufficient grounds upon the merits, and he may approve or disapprove such finding as shall seem to him to be required to do substantial justice to the party against whom the proceeding was instituted and without regard to technical require ments. 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 voter to be stricken from the enrollment books.

:

Derivation: Formerly § 44. Renumbered and amended by L. 1911, ch. 891, § 25, in effect Nov. 15, 1911. Originally revised from Primary Election Law, § 3, subd. 12, as added by L. 1904, ch. 488, § 1.

§ 25. Investigation of enrollment.

Whenever the state superintendent of elections shall require, it shall be the duty of the chief of police and of every captain, in every city of the state to forthwith cause an investigation of each name enrolled in his precinct to be made and to report to the state superintendent of elections, at his office, in such city or at such other office as the state superintendent of elections may in writing designate any case of false enrollment there found. It shall be the duty of the board of elections of the county or of such city to furnish to the chief of police and police captain a printed or typewritten list of the enrolled voters of such city and afford necessary facilities, including clerical assistance, to either such chief of police or police captain, to transcribe the whole or any part of the enrollment list, in aid of the duty of investigation imposed on him under the provisions of this section.

Added by L. 1916, ch. 537, in effect May 15, 1916.

ARTICLE 3.*

PARTY ORGANIZATION.

Section 35. Party committees.

36. State committee.

37. County committee.

38. Election of members of state and county committees.

39. Formation of committees other than state or county committees. 40. Organization and rules of committees.

41. Review of election of committees.

42. Removal of member of committee.

43. Vacancies in state or county committees

§ 35. Party committees.

Party committes shall consist of a state committee, county committees, and such other committees as the rules and regulations of the party may provide.

Derivation: Added by L. 1911, ch. 891, and amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

Committees, and rules of parties.-This subject was covered in Election Law, §§ 64 and 65, which were repealed by L. 1911, ch. 891. The following decisions were rendered under those former sections and are given here for whatever historical or other value they may have:

Removal of member of general committee.-The members of a general committee of a political party cannot remove one of their members who has been duly elected as provided in the Primary Election Law, and a member whose removal has been attempted may be restored by mandamus or his attempted removal may be enjoined. People ex rel. Coffey v. Democratic General Committee of Kings (1900), 164 N. Y. 335, 51 L. R. A. 674, rev'g 52 App. Div. 170, 65 N. Y. Supp. 57, and aff'g 31 Misc. 350, 65 N. Y. Supp. 418.

Where the state committee of the democratic party, which is the executive body of that party in the state, has no constitution or by-laws, and is elected by delegates from the respective senatorial districts, and no power resides anywhere to reject their choice, it will be enjoined from expelling, by a majority of said committee, the representatives of senatorial districts in Kings county. Cummings v. Bailey (1907), 53 Misc. 142, 104 N. Y. Supp. 283, aff'd 120 App. Div. 892.

Certificate of board of elections as to the election of a member of a county committee is conclusive, and the committee is without power to eject him on the ground that he has not been legally elected. People ex rel. Hahn v. Republican County Committee (1908), 124 App. Div. 427, 108 N. Y. Supp. 1051, aff'd 192 N. Y. 568.

Power to select an election officer lies in the general committee of a party and the court will not interfere. Matter of Sheehan v. McMahon

Schedule of sections thus amended by L. 1911, ch. 891, and L. 1913, ch. 820, in effect Dec. 17, 1913.

(1899), 44 App. Div. 63, 94 N. Y. St. Rep. 452, 60 N. Y. Supp. 452, aff'g 28 Misc. 733, 59 N. Y. Supp. 969.

City committee of Democratic party in Albany may fill every office in the committee not held and controlled by the rules of the general committee of the county. Wallace v. McCabe (1900), 32 Misc. 336, 66 N. Y. Supp. 695. A city committee of a political party is a general committee for the city affairs, while the county committee is a general committee for the county affairs. Matter of Wallace (1901), 36 Misc. 1, 72 N. Y. Supp. 445.

Effect of amendment of 1901 is to permit a city committee, organized by the members of the general committee of a county, elected from the several wards of the city, to fix the basis of representation of the several wards of the city in the city convention, different from that authorized by the county committee. Matter of Wallace (1901), 36 Misc. 1, 72 N. Y. Supp. 445.

Filling vacancies.-A general county committee may adopt a rule providing that a vacancy in that body, created by a resignation of one of its members, shall be filled for the remainder of 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 (1901), 63 App. Div. 438, 71 N. Y. Supp. 528, aff'd 168 N. Y. 639.

Where a party convention, owing to a deadlock, fails to nominate a candidate for the office of State Senator, the chairman of the county committee, pursuant to a rule or regulation adopted to provide for such contingency, may call a joint meeting of the members of the county committee of the assembly districts comprising the district affected and of the executive committee of the county committee, and this joint meeting may nominate a candidate for the office. Matter of Kehoe (1904), 45 Misc. 132, 91 N. Y. Supp. 889, aff'd 97 App. Div. 637.

County and State committees appointed at conventions of political parties to take charge of party affairs have administrative and executive power only. Brown v. Cole (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

A political party neither at its conventions nor by any of its committees may directly or indirectly make null the statute prescribing the qualifications of voters at primaries. Brown v. Cole (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

Control of county committee. The county committee of a political party is the agent and servant of the party in the administration of its affairs and is subject to its control and may be sued by any elector whose political rights are unlawfully abridged and interfered with by its action. Brown v. Cole (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

A member of a political party may maintain a suit to restrain a county committee of that party from carrying out an illegal enrollment system promulgated by it, although he is not a member of the county committee. Brown v. Cole (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

In an action by an elector where the complaint shows that a county committee of the party to which he belongs has assumed to delegate to boards in the respective districts and wards of the county discretionary power to enroll and to strike from the rolls the names of voters and thereby prevent voters belonging to the party from voting at its primary election, such elector is threatened with an injury to his political rights which is beyond remedy, and an injunction pendente lite should be granted. Brown v. Cole (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

Committees, etc., how brought into court. The provisions of law relating to actions and special proceedings against unincorporated associations are applicable to political parties and to their respective conventions and committees, and they may be brought into court by actions against their officers

as prescribed in section 1919 of the Code of Civil Procedure. (1907), 54 Misc. 278, 104 N. Y. Supp. 109.

Brown v. Cole

Title to office of general committeeman, it seems, must be tried in a manner similar to that taken in the case of a public officer. Matter of Hines (1910), 141 App. Div. 569.

36. State committee.

The state committee of each party shall be constituted by the election from each assembly district of one member who shall be an enrolled voter of the party within said district. Each member

of a state committee shall be entitled to one vote.

In case of the death, declination, disqualification, removal from district, or removal from office of a member of a state committee or the failure to elect a member as by reason of a tie vote, the vacancy in such state committee caused thereby shall be filled by the remaining members of such state committee as provided in section forty-three of this chapter.

In the event of a change of the boundaries or designation of assembly districts after the election of members to such state committee, members thereof shall represent for the balance of their term, the district in which they reside, provided there is only one such members resident in such district. If no member, or more than one member, be resident in such district so changed, a vacancy from such district shall be deemed to exist which shall at a meeting, of which every member shall have three days' notice by mail from the chairman of the county committee, be filled by the members of the county committee residing in such assembly district until the next official primary election, at which time such vacancies shall be filled by election in the manner provided in this chapter for the balance of such term.

Added by L. 1911, ch. 891, § 27; amended by L. 1912, ch. 4; L. 1913, ch. 820; L. 1916, ch. 537, in effect May 15, 1916.

In general. See note to Election Law, § 35.

The state committee is given the power by this section to designate the time and place of holding the state conventions of the party. It is given further authority to fill all vacancies caused by the death, declination, or disqualification of any candidate who is nominated by the state convention or if any certificate of nomination is found to be defective and not wholly void, the committee has power to make and file a new certificate with the secretary of state. Report of Atty.-Gen., 1911, Vol. 2, p. 677.

§ 37. County committee.

The county committee of each party shall be constituted by the election in each election district within such county of at least. one member, and of such additional members as the rules and regulations of the party may provide for such district, proportional

1

to the party vote in the district for governor at the last. preceding gubernatorial election, or in case the boundaries of such district have been changed or a new district has been created since the last preceding gubernatorial election, proportionate to the party vote cast for member of assembly at the last preceding general election; and in any county having one million or more inhabitants, where the county committee of any party, by its rules and regulations, is constituted by the election of county committeemen from each election district proportionate to the party vote in such district, an additional member shall be elected at large from each assembly district or aldermanic district in such county, if the said county committee shall by its rules and regulations so provide. If, in any county, no additional members are provided for by rules and regulations, the voting power of each member shall be in proportion to such party vote. In a county in which additional members are so provided for, on the basis of the party vote in election districts, or from assembly or aldermanic districts, each member of the committee shall have one vote. Each member of a county committee shall be an enrolled voter of the party residing in the assembly or aldermanic district from which or in the assembly district containing the election district in which he is elected.

In case of the death, declination, disqualification, removal from district or removal from office of a member of the county committee, or the failure to elect a member, as by reason of a tie vote, the vacancy in such county committee caused thereby shall be filled by the remaining members of such county committee as provided in section forty-three of this chapter.

Added by L. 1913, ch. 820; amended by L. 1916, ch. 104; L. 1917, ch. 703, in effect June 1, 1917.

Only an enrolled voter is eligible as a candidate for election as a member of a county committee, and the question of eligibility may be raised after the election. A person who at the time of the last general election was not of age, but subsequently caused himself to be specially enrolled as permitted by § 14b, but after the primary election, does not thereby quailfy himself to Matter of Werther (1916), 94 Misc. 681, 158 N. Y. Supp. 321.

serve.