(178 N.Y.S.) less gas. This might easily be overcome by the limitation of leakage and waste. I think all householders especially should have the use of gas on streets where the mains are laid. Whether or not they get enough, or all they want, will depend upon whether or not the company can furnish it. If it cannot by reasonable diligence provide it, the consumers will have to be content with what they get, or resort to such remedies as they may have, but which are not within the contemplation of this proceeding. The company cannot be compelled to perform the impossible, but to do its utmost to give service to all who are entitled to it, without discrimination. [2] It is urged that the commission has no power to interfere by mandamus until it has made an order respecting service which the company fails to obey. The commission made an order to limit the service, which was annulled on review by the court. This relegated the parties to the status before the order was made, which showed applications for gas connections, refusal, and complaints filed with the commission. Section 74 of the Public Service Commissions Law is the authority under which the commission is acting, and provides for this proceeding whenever they are of the opinion that the company is failing or omitting to do anything required by law or by order. The application is granted. MICHIGAN CENT. R. CO. v. ACHESON GRAPHITE CO. (Supreme Court, Special Term, Niagara County. September, 1919.) PLEADING 333-FAILURE TO PLEAD TO COUNTERCLAIM IN TIME EXCUSED. Plaintiff will be relieved from his default, resulting from the discussion between counsel of the legal propositions, and allowed to demur or reply to the counterclaim, as it may conclude; merits and good faith being shown. Action by the Michigan Central Railroad Company against the Acheson Graphite Company. On motion to relieve plaintiff from default in pleading. Motion granted. Locke, Babcock, Spratt & Hollister, of Buffalo, for plaintiff. POOLEY, J. Motion by plaintiff for permission to serve demurrer to defendant's counterclaim, or for such other relief as may be proper. The point raised is whether a demurrer or a reply is the proper pleading. The discussion of the legal propositions between counsel has resulted in the plaintiff being in default, and the motion is to relieve this default. I think good cause has been shown why this default should be disposed of, and the plaintiff be permitted to plead. It is unnecessary for me at this time to pass upon the proposed pleading, because the plaintiff may conclude to serve a reply, instead of a demurrer. Incidentally, I may call attention to the case of Penn. R. R. v. Bellinger, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 101 Misc. Rep. 105, 166 N. Y. Supp. 652, in Erie Special Term, Sears, J., where it is held that a shipper may counterclaim for damages to the goods growing out of the shipment, in an action for freight charges thereon. Whether or not it would be permissible to counterclaim for damages to property other than those involved in the shipment is not decided. The cases in the United States court holding the opposite are cited by Sears, J., and disclose unanswerable reasons for the rule in cases which afford opportunity to evade the statute. Our court has probably gone as far as it will in the Bellinger Case, where the counterclaim is for damage to goods growing out of the same transaction, and I am in accord with it, for the reason that the carrier has summoned the shipper into court, demanding payment of freight charges, to which, if defendant is right, the carrier is not entitled, because of its failure to carry and deliver safely and in good order. In the case now before us, the plaintiff sues for $192 freight charges, and the defendant sets up a counterclaim of $3,000, damages resulting from delay in delivery. The laches of plaintiff is excused, and plaintiff is allowed to serve such pleading as it deems best, within 10 days. Under rule 23, the papers show merits and good faith. (108 Misc. Rep. 668) In re LYNCH. In re KINLOCH. (Supreme Court, Special Term, Albany County. September, 1919.) 1. ELECTIONS 141-INDEPENDENT NOMINATION MUST COMPLY SUBSTANTIALLY WITH STATUTE. If the substantial requirements of Election Law, § 123, providing for independent certificates of nomination, have not been satisfied, it is improper to authorize the name of an independent candidate for mayor to be printed on the ballot at the general election in the city. 2. ELECTIONS 154(1)-ON APPLICATION TO ADJUDGE INDEPENDENT NOMINATION CERTIFICATE VOID, COURT MUST DO JUSTICE. Under Election Law, § 125, on application for order adjudging an independent nomination certificate for mayor to be insufficient and void, as not meeting the requirements of section 123, the Supreme Court must make such decision and order as justice may require. 3. ELECTIONS 144, 155-SIGNATURE OF WITNESS TO INDEPENDENT CERTIFICATE OF NOMINATION NOT IN COMPLIANCE WITH STATUTE. An independent certificate of nomination for mayor of a city, where the witness did not sign his name on the same line and opposite the name of each voter's signature, but up and down the page perpendicular to the voters' signatures, was not in compliance with Election Law, § 123, though the defect might be cured, if responsibility for the witness' signature could be fixed, by re-signing his name properly after the certificate had been declared insufficient, on application for order to that ef fect; proper proof being made that the witnesses had actually witnessed bona fide signatures of qualified voters. 4. ELECTIONS 155-FAILURE TO SHOW RESIDENTIAL QUALIFICATION OF WITNESSES TO FREEHOLDERS' SIGNATURES, CURABLE DEFECT, The defect in an independent certificate of nomination for mayor of a city, that it does not appear that certain witnesses to signatures are For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) freeholders in the county or residents thereof for the last preceding five years, may be cured by the affidavits of the witnesses that they do possess the qualification of residence. 5. ELECTIONS 144-PETITION FOR INDEPENDENT NOMINATION IN TWO SECTIONS MUST BE READ AS ONE. Where a petition for independent nomination for mayor of a city is in two sections, they must be read together as one, and the witnesses covered by the character certificate in the first section must be deemed to be covered as to the second section also. The omission of a petition for independent nomination for mayor of a city to embrace a character certificate as to three witnesses to the signatures of voters is excusable, and can be cured in the form required by law. 7. ELECTIONS 144, 155-CHRISTIAN NAME MAY BE OMITTED FROM SIGNATURES TO CERTIFICATE OF INDEPENDENT NOMINATION. Election Law, § 123, requires only the signatures of the signers on an independent certificate of nomination, and whatever is capable of identifying the signer is sufficient, though the Christian name is omitted, while any error in form or failure to disclose identity can be cured as an excusable omission, on submission of proper proofs by the signer. 8. ELECTIONS 144-REGISTRATION AND VOTING IN MILITARY CAMP SUFFICIENTLY QUALIFY VOTER AS WITNESS TO INDEPENDENT NOMINATION. Registration and voting in a military camp by one in the military service during the particular year was a proper registration, within the meaning of Election Law, § 123, sufficient to qualify such voter as a witness to an independent certificate of nomination. In the matter of the application of John Lynch for an order decreeing and adjudging the certificate of the independent nomination for mayor of the city of Troy, N. Y., of Osman F. Kinloch, as the candidate of the Independent Citizens' League, at the general election to be held November 4, 1919, to be insufficient, invalid, and void. Decision against the petition for independent nomination, unless additional proof submitted. Thomas S. Fagan, of Troy, for petitioner. George W. Donnan, of Troy (Andrew J. Nellis, of Albany, of counsel), for respondents. Herbert F. Roy, of Troy, for board of elections. HINMAN, J. [1] This is an application for an order under sections 125 and 134 of the Election Law (Consol. Laws, c. 17), decreeing the certificate of independent nomination for mayor of the city of Troy, N. Y., of Osman F. Kinloch as the candidate of the Independent Citizens' League at the next general election, to be insufficient to meet the requirements of section 123 of the Election Law, which provides for such independent certificates of nomination. If the substantial requirements of this section are not satisfied, it is improper to authorize the name of Osınan F. Kinloch to be printed upon the ballot at the general election in the city of Troy, N. Y. [2] Upon this application the court must make such decision and order as justice may require. Election Law, § 125. The statute For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes requires that such an independent certificate of nomination shall be signed by at least 5 per centum of the total number of votes cast for Governor at the last gubernatorial election in the city of Troy. It is conceded that the number of signatures required in this case was 1,278. It is also conceded that there are 1,394 names of alleged signers upon this petition, being 116 more than the required number. There are, however, certain objections made to large numbers of these signatures, which, if valid objections, would not permit the court to count such signatures in reaching the determination that the required number had signed. The main objection deals with the authentication of the signatures by witnesses thereof. In making independent nominations and authenticating certificates thereof, section 123 of the Election Law prescribes certain procedure and forms. Two methods of making the certificate are prescribed: One method is for the voter to sign the certificate of independent nomination and add to his signature his place of residence and take the required oath himself before an officer authorized to administer oaths. The other method is that there shall be a witness to the signature of the voter, and that such witness shall see the voter sign, shall hear him declare it to be his intention to support the candidate at the polls, and shall thereupon in the presence of the voter sign himself opposite the signature of the voter and in his presence. [3] The first objection made to the certificate of Dr. Kinloch is that such certificate does not appear to be witnessed, as required by law, in that the witness did not sign his name on the same line and opposite the name of each voter's signature, for whom he acted as a witness, but that the witness simply signed his name once for several names of the voters. In other words, the voters subscribed their names, writing them across the page of the certificate, while the witness signed his name up and down the page in a direction perpendicular to the signatures of the voters. For reasons which I will detail later I have reached the conclusion that the method adopted did not conform to the statutory requirements. It is impossible to determine, from the certificate itself, whether the witness did actually do the things which he was required to do with reference to the requisite number of signers. He was required, among other things, to sign his name opposite the voter's signature. This requirement he did not fulfill, although he states and makes oath that he did this thing. The fact that the witness stated and made oath that he did a thing, which plainly he did not do, requires explanation. Matters of substance cannot be corrected by the court without a particular authorization by the Legislature. If, however, the substantial requirements of the statute were complied with, and there was simply a mistake in recording the name of the witness in the proper place and on the proper line, the court would have the power under the statute, which permits it to make an order in the premises such as justice requires, to permit this irregularity to be rectified. Mistakes, omissions, and irregularities which do not involve any substantial requirement of the statute, but relate to the (178 N.Y.S.) record merely of the facts required to exist, may be corrected by the court as justice requires such procedure. What are the substantial things required by the statute to be done in the making of an independent certificate of nomination? The statute requires: (1) That a qualified voter of the city of Troy should sign and state his residence and declare his intention to support the candidate at the polls; (2) that a qualified witness should witness the signature of a person known by him to be the person signing and whom he saw sign, and who declared to him his intention to support the candidate at the polls, such witness then signing his own name opposite the name of the signer and in his presence. The primary function of the independent certificate of nomination is to indicate that a certain percentage of the qualified voters of the city of Troy intends to support the candidate. So far as a witness has failed to clearly indicate upon the face of the petition the signatures witnessed by him he has to that extent failed to make it clear that the persons signing are qualified voters of the city of Troy who intend to support the candidate at the polls. As a safeguard against fraud, and with the purpose to hold some one responsible under oath for the authenticity of the signatures of qualified voters and to assure the good faith of the support of the candidate, the law requires that either the signer shall swear to the facts, or that some one knowing the signer shall make a similar oath as a witness; and if the witness' method is adopted, the law requires that he shall have certain qualifications, namely, that he shall be a man of substance in the community, or at least that he shall have dwelt long enough there to have demonstrated his good character and honesty, and who shall have indicated that he is not a mere floater or colonizer, by having registered from the same address, or the same election district, for the last two preceding general elections. Thus his identity, his character, and his political record might be easily detected and traced, and in the event of any falsity in his oath, he might be the more readily punished for his crime in the manner permitted by subdivision 4 of section 123 of the Election Law. It was intended that irresponsible witnesses from other communities, or even from other states, should not be permitted to be imported for the purpose of defrauding the public and other bona fide candidates in the preparation of such a petition and then be afforded easy escape from criminal prosecution and imprisonment for at least 3 months, as fixed by that statute. Thus the qualifications of the witness are substantial require ments of the statute and cannot be ignored by the court. Nor can the court conclude that justice requires other than that the witness shall clearly indicate on the face of the petition just what signatures he is witnessing. That is the reason why the statute requires his signature "opposite" the signature as to which he signs as a witness. Otherwise, he might easily escape criminal prosecution for witnessing a false and fraudulent signature by afterwards maintaining that he did not witness the signature, that his name was not opposite it, and was not intended to be included amongst the names of persons as to 178 N.Y.S.-3 |