225 A.D. 149 | N.Y. App. Div. | 1928
Whether or not plaintiff has a cause of action at common law against the defendants, because they illegally deprived him of his rights as a candidate for office, is the question. The complaint was dismissed on the opening and the allegations thereof must be taken as true. The defendants Eaton and Parker were the commissioners of election and constituted the board of elections of Columbia county, N. Y., and the other defendant was their clerk, at the times mentioned in the complaint. On September 28, 1927, plaintiff was duly nominated as a candidate for the office of justice of the peace of the town of Greenport, in said county, at a primary meeting of the voters of the Democratic party, held in and for the town. A certificate of such nomination was duly filed on October 4, 1927. The complaint alleges that the said clerk thereafter, with the knowledge and consent of the commissioners and without plaintiff’s, illegally, wrongfully and feloniously altered the certificate by writing the words “ Short Term ” after the title of the office, opposite plaintiff’s name, and caused ballots to be printed and voted, showing the names of the other Democratic candidate and the two Republican candidates in a group, with ■instructions printed thereon to vote for two, and showing plaintiff’s name by itself under the title of the office, “ Short Term,” with instructions to vote for one. Two justices were to be elected. (Town Law, §§ 80,103, as respectively amd. by Laws of 1924, chap. 179, and Laws of 1926, chap. 422.) Two candidates had been nominated by each party and certificates, accordingly, had been filed. There was no short term. Plaintiff received 260 votes, one of the
The judgment should be reversed and a new trial should be granted, with costs to the appellant to abide the event.
Van Kirk, P. J., Hinman, Hill and Hasbrouck, JJ., concur.
Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event.