(56 Misc. Rep. 302.)

#### HAMMOND v. GENERAL COMMITTEE OF REPUBLICAN PARTY OF ERIE COUNTY et al.

(Supreme Court, Special Term, Erie County.

September 28, 1907.)

1. Mandamus—Application fob Peremptory Wbit—Replying Affidavits.

On an application for a peremptory writ of mandamus, the replying affidavits must be taken as true.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, § 403.] S. Elections—Party Affairs—Judicial Oontbol.

Since the primary election law imposes no duty upon a political organization to print ballots for a primary and no duty respecting the inspection or distribution of any ballots, and the law confers no right upon an elector to inspect ballots prepared by another elector, though that elector be a district committeeman, and since it was never intended that courts should interfere with the details of party management, mandamus for an inspection of names of delegates to a convention in the possession of the general committee of a party and received from the district committee to be voted for at primaries before the same are presented to electors at the polling booths will not lie.

Application of Clark H. Hammond for a writ of peremptory mandamus against the general committee of the Republican party of the county of Erie and others.. Denied.

August Becker, for relator.

Daniel J. Kenefick, for respondent.

MARCUS, J.

It is conceded that under the primary election law there is no provision for an official ballot at the primaries, and in this respect the primary law radically differs from the general election law; that no authority is vested in the general committee of a party organization, or in any general committeeman or district committeeman of a party organization, to issue an official ballot. The framers of the law evidently had in mind that any elector should have the right to print or write ballots to be voted at the primaries, and the law imposes the duty upon the primary inspectors to receive ballots presented to them by any elector, and to have them in the polling booth, and to present a copy of each ballot to a voter before voting. The design of the law was to permit absolute freedom in providing ballots for the use ■of voters at primary elections; and, to make it easy for any elector to furnish ballots, the law provides that the election commissioner must furnish at cost to any elector applying therefor the kind of paper required to be used. There is no rule of the Republican general committee which imposes the duty upon a district committeeman of selecting delegates for conventions, and there is no power conferred, either by law or by the rules of the general committee, which requires a district committeeman to select delegates for the various conventions. It appears from the replying affidavits, which must be taken as true for the purposes of this' application, that it has been the custom of the ■district committeemen to have printed at the expense of the committee the names of the delegates selected by such district committeemen, and that the general committee has performed this service for many years solely as a matter of accommodation to the district committeemen, and that the general committee has not attempted to interfere in any way *590with the choice of delegates so made by the district committeemen. The court is given power under the primary eléction law to enforce any right secured to an elector by that law and to enforce the performance of any duty imposed by that law upon a political committee. As above indicated, the primary election law imposes no duty upon a political organization to print ballots for a primary, and imposes no duty whatever in -regard to-the inspection or distribution of any ballots; and there is no provision in the primary law which confers any right upon „ an elector to inspect ballots prepared by another elector, even though that elector be a district committeeman. It is obvious that the court is without power to grant the relief asked for. It was never intended that the courts should be called upon to interfere with the details of party management.

The application for a peremptory writ of mandamus is denied.