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and thirty-five of this article, and also to each candidate placed in nomination by such certificate. The question raised by such writ ten objection shall be heard and determined as prescribed in section one hundred and twenty-five of this article.

Derivation: Election Law, § 65.

Amended by L. 1911, ch. 649. In effect July 13, 1911.

Cross-references. As to hearings of objections by filing officers and review of their determinations, see Election Law, § 125.

The validity of the objections to a certificate of nomination is primarily heard, investigated and decided by the officer with whom such certificate is filed, and unless an order be made by a court of competent jurisdiction his decision is final. Matter of Woodworth (1892), 64 Hun, 622, 19 N. Y. Supp. 525.

Where no objection to a certificate of nomination is filed within the time prescribed, the officer with whom the certificate is filed is bound to recognize it as valid and the persons named therein as the regular nominees. Matter of Cowie (1890), 33 N. Y. St. Rep. 710, 11 N. Y. Supp. 838.

Proper party to review.-When objections to a certificate of nomination are sustained by the board of elections a review may be had only on the application of the candidate, or of the committee representing the party which placed him in nomination. Matter of Logan (1906), 116 App. Div. 146, 102 N. Y. Supp. 200.

Any party interested may apply to the court to investigate and decide between the contending candidates, but a member of a county committee, not one of the candidates nominated, is not an interested person. Matter of Woodworth (1892), 64 Hun, 522, 19 N. Y. Supp. 525.

A person who is not one of the candidates in a certificate of nomination, but who is substituted as a party in place of the county clerk in a proceeding to review the determination of the clerk on the filing of a certificate of nomination, cannot appeal from an order of a justice of the Supreme Court ordering the county clerk to print on the official ballot the names of certain nominees. Matter of Woodworth (1892), 64 Hun, 522, 19 N. Y. Supp. 525.

On a review of a determination of the board of elections of the city of New York sustaining objections to a certificate of nomination and rejecting such certificate, the Supreme Court can consider only the facts presented to such board of elections. Matter of Horan (1905), 108 App. Div. 269, 95 N. Y. Supp. 607.

Judicial review prior to action of board.-Although no certificate for an independent nomination has been presented to the board of elections for filing, the courts will entertain a mandamus proceeding in an extraordinary case directing such board to disregard as unconstitutional the provision of a statute held to be void. People ex rel. Hotchkiss v. Smith (1912), 206 N. Y. 231.

$ 135. Filling vacancies in nominations.

If a nomination made otherwise than by an official primary election is duly declined, or the attempt to nominate at a primary results in a tie, or a candidate regularly nominated otherwise than by an official primary election dies before election day, or is found

to be disqualified to hold office for which he is nominated, or if any certificate of nomination is found to be defective but not wholy void, the committee appointed on the face of such certificate of nomination, as provided by sections one hundred and twenty-one and one hundred and twenty-three of this chapter, may make a new nomination to fill the vacancy so created, or may supply such defect, as the case may be, by making and filing with the proper officer a certificate setting forth the cause of the vacancy or the nature of the defect, the name of the new candidate, the title of the office for which he is nominated, the name of the original candidate, the name of the political party or other nominating body which was inscribed on the original certificate, and such further information as is required to be given by an original certificate of nomination; except that where a certificate is filed pursuant to this section to fill a vacancy, it shall not be lawful to select a new name or emblem, but the name and emblem chosen to distinguish the candidate nominated by the original certificate shall be used to distinguish the candidate nominated as provided by this section.

Derivation: Election Law, § 66, pt. of subd. 1, as amended by L. 1897, ch. 379, § 17; L. 1901, ch. 95, § 17; L. 1905, ch. 49, § 1, and ch. 643, § 17. Amended by L. 1911, ch. 891, and L. 1913, ch. 820, in effect Dec. 17, 1913. Consolidators' note.-The words "or the attempt to nominate at a primary results in a tie" were inserted in this section by L. 1905, ch. 49, but the draftsman of chapter 643 of the same year (which amended this and a number of other sections to harmonize the machinery of the Election Law with the new office of commissioner of elections of Erie county created by L. 1904, ch. 394) omitted them, presumably in ignorance of the pendency of the earlier amendment, and both bills passed the legislature without being harmonized. The result is that the original omission to cover the case of a tie vote, once cured, has been recreated. Forms. As to filling vacancies in nominations by duly authorized committees, see Forms (part 12, post).

Nominations where regular nominee declines.-Prohibition against the nomination of a person already the nominee of an independent body of voters. Matter of Halpin (1905), 108 App. Div. 271, 95 N. Y. Supp. 611. Vacancy to be filled by committee.-The vacancy caused by the refusal of a nominee, after the certificate of nomination is filed and the convention which named him has adjourned, can only be filled by the committee appointed for that purpose. Matter of Greene (1907), 121 App. Div. 693, 106 N. Y. Supp. 425.

Where a vacancy was left by a convention of the Prohibition party which was subsequently filled by the duly authorized committee of such party by nominating for office the candidate, nominated by the Democratic party, the secretary of state cannot refuse to file, as invalid, a certificate of such nomination. Matter of Gillespie v. McDonough (1902), 39 Misc. 147, 79 N. Y. Supp. 182.

Contra-Committee cannot make an original nomination for an office

with reference to which the convention failed to take any action. Reports of Atty.-Gen. (1901), 292, (1902), 307.

Power of committee.-Although this section allows the committee appointed by a political convention to supply vacancies in a certificate of nomination, fill vacancies, etc., such committee has no power when a certificate of nomination has not been filed within the time required by statute. Matter of Darling (1907), 121 App. Div. 656, 106 N. Y. Supp. 430, aff'd 189 N. Y. 570.

Where assembly certificates when originally filed did not contain the name of the office as required by the Election Law, they were defective only and not wholly void; and the committee appointed on their face to supply defects, etc., should supply such defects. Matter of Independence League Nominations (1906), 51 Misc. 486, 100 N. Y. Supp. 760.

The Election Law provides that when there have been original party nominations the nominations are completed on the filing of the certificate, and when a nomination has been declined the vacancy must be filled by a candidate selected by the nominators. But as such committee having the right to fill vacancies is prohibited from selecting any person who has been nominated as a candidate by any other political party, it follows that the candidate who is nominated by another party cannot be placed under the name and emblem by filing the certificate of nomination by independent voters. What cannot be done directly by the committee cannot be done indirectly by the certificate of nomination., Matter of Brevillier (1906), 116 App. Div. 144, 102 N. Y. Supp. 217.

Where a party nominee has duly declined the nomination and filed a certificate to the effect with the board of elections as required by statute, two of a committee of three appointed by the convention pursuant to this section are entitled to nominate a person in his place by filing a new certificate. Matter of Kirk v. Gallagher (1911), 146 App. Div. 685.

136. Certificates of new nominations.

The certificate so made shall be subscribed and acknowledged by a majority of the members of the committee, and the members of the committee subscribing the same shall make oath before the officer or officers before whom they shall severally acknowledge the execution of the said certificate that the matters therein stated are true to the best of their information and belief. Except in case of the death of a candidate after the official ballots have been printed and before election day, the said certificate shall be filed in the office in which the original certificate was filed, at least five days before election, if filed in the office of a town or village clerk; otherwise at least fifteen days before the election; and upon being so filed shall have the same force and effect as an original certificate of nomination. When a new certificate of nomination is filed with the secretary of state, he shall, in certifying the nomination to the various boards and officers, insert the name of the person who has been thus nominated, instead of that of the candidate nominated originally, or, if he has already sent forward his certificate, he shall forthwith certify to such boards and other officers the name

of the person newly nominated, and such other facts as are required to be stated in such certificate.

Derivation: Election Law, § 66, pt. of subd. 1, as amended by L. 1897, ch. 379, § 17; L. 1901, ch. 95, § 17; L. 1905, ch. 49, § 1, and ch. 643, § 17.

Amended by L. 1911, ch. 891, and L. 1913, ch. 820, in effect Dec. 17, 1913.

A nomination for public office becomes complete only upon filing the certificate of nomination with the proper officers, and then, and not before, does the person nominated become the candidate of a party for that office. Matter of O'Brien (1910), 140 App. Div. 467, 125 N. Y. Supp. 260.

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137. Death of candidate after printing of ballots; official pasters.

In case of the death of a candidate after the official ballots have been printed, and before election day, the vacancy may be filled by filing the proper certificate of nomination of a candidate to fill such vacancy, with the officer or board with whom the original certificate was filed, or by whom it was issued, and if filed with the secretary of state, the secretary of state shall immediately give the necessary notifications, and it then shall be the duty of the officer or board furnishing the official ballots to prepare and furnish to the inspectors of election in the election districts affected adhesive pasters containing the name of the candidate nominated to fill the vacancy. The pasters shall be of plain white paper, printed in plain black ink and in the same kind of type as that used in printing the names of the candidates upon the official ballots, and shall be of a size as large as and no larger than the space occupied upon the official ballot by the name of the candidate in whose place the candidate named upon the paster has been nominated. If, however, the deceased shall be the candidate of several parties or bodies, and they shall not all nominate the same candidate as his successor, a paster shall be prepared which shall contain the entire matter to be contained in the section on which such deceased candidate's name appears, and shall be pasted over the whole section and shall supersede it.

Whenever such pasters are provided, the officer or board furnishing them shall certify to the inspectors of election in the election districts affected by the vacancy, the name of the original candidate, the name of the new nominee, the title of the office for which the nomination is made, and the name of the political party or independent body making the nomination, and shall state the number of pasters furnished, which number shall be equal to the number of official ballots furnished for such district. Upon the delivery of said pasters, the inspectors of election shall sign a receipt for the same, which receipt shall be retained by the officer or board

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furnishing the pasters, and shall be part of the record of his or their office. The inspectors shall deliver the pasters to the ballot clerks, who are required to affix one of such pasters in the proper place and in a proper manner upon each official ballot before said ballot shall be delivered to a voter. When so affixed to the official ballot, the pasters shall be part of the official ballot. The ballot clerks shall include in their statement of ballots a statement showing the number of pasters received by them, the number of pasters affixed to official ballots and the number of unused pasters returned by them, the unused pasters to be inclosed in the package of ballots not delivered to voters.

The use of any paster upon the official ballot otherwise than as herein provided is hereby declared a felony, punishable by imprisonment in a state prison for not less than one nor more than five years.

Derivation: Election Law, § 66, subd. 2.

Amended by L. 1911, ch. 891, and L. 1913, ch. 821, in effect Dec. 17, 1913.

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