MATTER OF SWEENEY, 209 N.Y. 567 (1913)

103 N.E. 1133

In the Matter of the Petition of DANIEL J. SWEENEY, Respondent, to Review the Action of the COMMISSIONERS OF ELECTIONS FOR THE COUNTY OF MONTGOMERY, Appellants. THE SECRETARY OF STATE OF THE STATE OF NEW YORK, Appellant.

Court of Appeals of the State of New York.Argued October 28, 1913
Decided October 29, 1913

Page 568

Thomas Carmody, Attorney-General (Joseph A. Kellogg an Claude T. Dawes of counsel), for secretary of state, appellant.

Andrew J. Nellis for commissioners of elections, appellants.

Charles G. Fryer and H.L. Slobodin for respondent.

Per Curiam.

We think that the petitioner was not entitled to any relief against the secretary of state. If he is entitled to maintain a single proceeding against both the commissioners of elections and the secretary of state it must be by section 134 of the Election Law in conjunction with section 56 of said act. Section 134 requires notice to be given to the candidates affected, and no such notice has been given in this case. If, as claimed, it will become the duty of the secretary of state, on the receipt of the amended returns from the commissioners of election, to give a new certificate of nomination without an order of the court, then the petitioner’s remedy is by mandamus.

The order of Appellate Division, so far as it reverses the order of the Special Term, should be reversed, without costs to either party.

CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN and MILLER, JJ., concur.

Order reversed, etc.