53 N.Y.S. 1093 | N.Y. App. Div. | 1898
The moving papers show that the petitioner was duly nominated by a convention of the Democratic party, assembled for that purpose, as a candidate for state senator in the Second senatorial district of this state, to be voted for at the coming general election to be held on the 8th day of November then next ensuing. The county
The county law requires that county clerks, between the 31st day of September and the 1st day of April, shall keep their offices open for the transaction of public business, from 9 o’clock in the forenoon to 5 o’clock in the afternoon, except upon Sundays and holidays or half-holidays. It is argued, therefore, that, as this certificate was presented after the hour for closing his office, he could not lawfully receive and file the same, and therefore the attempt to file was inoperative. The statute does not make the act of keeping open the clerk’s office after or before the hours mentioned therein unlawful. It simply fixes the hours in the day when it shall be open for the transaction of public business. What effect an official act of the clerk would have when done after the closing or before the opening hour, if done at his office, in all cases, it is not necessary to determine-in this proceeding. It was held in Hathaway v. Howell, 54 N. Y. 97, relied upon to support the determination below, that leaving a judgment roll with the clerk after the closing of the office did not constitute the same a valid judgment as of the time of delivery, but that it became operative upon the following business morning, when the clerk opened the office. It is, however, to be observed that judgments are-required to be docketed in books kept for that purpose, and cannot become effective until received at the clerk’s office where such books are kept. In cases of this class, the docketing of judgments, recording of mortgages, and other similar acts, are required, not alone for the-protection of the parties whose interest is to have them recorded or docketed, but it also affects or may affect the rights of third parties, as the act of record determines their status, and the necessary steps to insure a lien are required by positive law. As applied to this case, no such question can arise. The filing of this certificate in no wise affected the property interest of third parties, or in any wise affected théir legal right in respect thereto. The purpose of the statute is to-require the filing to evidence the action of the convention, and enable the clerk to make up and properly certify the ticket. The voters-have a special interest in having what was done properly evidenced, in order that they may not be deprived of the privilege of exercising the franchise in favor of a person representing their views, which their delegated authority has selected. There is therefore quite a
This view is confirmed by thé customary practice of the secretary of state, and other persons and bodies required to receive certificates of this character, who keep their respective offices open until midnight of the last day for filing certificates, in order that all legal rights may be preserved. This practice is commendable. But, whether it be adopted or not, we think the statute is satisfied when the certificate is given to the clerk; and, as it is .then within the legal right of the party so to deliver it, it must be regarded as a filing, within the meaning of this statute. The statute in question admits of different inter
Order reversed, and application granted, without costs. All concur.