189 N.Y. 570 | NY | 1907
Lead Opinion
Though we regard the statutory requirement as to the time when certificates of nomination should be filed as mandatory, a majority of the court are of the opinion that there may occur accidents and mistakes, causing delay in such filing, from the effects of which the Supreme Court in either branch may, under section 56 of the Election Law, relieve, provided it finds that the delay has not been due to the negligence or fault of the convention making the nomination, or of the party to whom the filing of the certificate was intrusted. (See Matter of Clark,
CULLEN, Ch. J., O'BRIEN and CHASE, JJ., concur. GRAY, J., concurs in the affirmance of the order upon the ground that the provision of the statute is mandatory with respect to the filing of the certificate, and that the relief which may be granted under section 56 of the statute is appropriate only where a certificate has, in fact, been filed, which is defective in some particulars. He agrees, however, that if the power exists to relieve from a failure to file the certificate, it is one to be exercised in the sound discretion of the Supreme Court, with which discretion this court should not interfere.
Dissenting Opinion
We are of the opinion that upon the undisputed facts in this case a question of law is presented which can be reviewed by this court, and that upon these facts it was not only within the power but it was the duty of the Supreme Court to grant the relief sought by the appellant. WERNER, J., absent.
Order affirmed. *572