Party chairman participates in governmental function when nominating Commissioner of Elections
How later courts described this case
- Party chairman participates in governmental function when nominating Commissioner of Elections
Written by the judges who cited it.
The opinion
Kleinfeld, J. (dissenting).
It is settled that a Board of Supervisors cannot appoint as Commissioner of Elections a person not nominated by the county chairman of the appropriate political party (Election Law, §§ 30, 52; Matter of Kane v. Gaynor, 144 App. Div. 196 , affd. 202 N. Y. 615 on concurring opinion of Burr, J.; People ex rel. Woods v. Flynn, 81 Misc. 279 ; Matter of Haynes v. McGrath, 16 Misc 2d 76, 79 ). Hence, the appointment of Mr. Weiss was illegal.
The facts in this proceeding are undisputed, and only a question of law is presented; moreover, as above noted, the question of law is not doubtful but well settled. Consequently, quo warranto is not the sole remedy, and a proceeding pursuant to article 78 of the Civil Practice Act will lie to void the illegal appointment (Matter of Schlobohm v. Municipal Housing Auth. for City of Yonkers, 270 App. Div. 1022 , affd. 297 N. Y. 911 ; Matter of Felice v. Swezey, 278 App. Div. 958 ; Matter of Sylvester v. Mescall, 277 App. Div. 961 ; Matter of Rivette v. Baker, 265 App. Div. 89 ). Respondent, as a resident, a taxpayer, a voter and an enrolled Democrat, has status to bring this proceeding (Matter of Rivette v. Baker, supra; People ex rel. Daley v. Rice, 129 N. Y. 449 ; Matter of McCabe v. Voorhis, 243 N. Y. 401, 411 ; Matter of Andresen v. Rice, 277 N. Y. 271, 281 ) and it is not necessary that Mr. Weiss be joined as a party (Matter of Rivette v. Baker, supra). There is no substance to the contention that the voiding of the appointment of Mr. Weiss may result in a breakdown of the election machinery in Suffolk County and the disenfranchisement of its voters. A similar contention was made and was overruled in Matter of Kane v. Gaynor ( 144 App. Div. 196, 207 , supra). Moreover, the appellants have conceded in their answer herein, and the records in the companion appeals clearly show, that the Board of *546 Elections was able to function normally under an order made by the Special Term before the vacancy was filled by the appointment of Mr. Weiss.
The order should be affirmed.
Wenzel and Hallinan, JJ., concur with Nolan, P. J.; Kleineeld, J., dissents and votes to affirm, in opinion in which Ughetta, J., concurs.
Order reversed on the law and the facts, without costs, and proceeding dismissed, without costs.