#### In the Matter of the Application of Michael G. Byrne, etc., Appellant. Rhinelander Waldo, Respondent.

First Department,

October 27, 1908.

Elections — organization of convention — informalities fatal to validity of nominations — oath, of chairman.

Unless the requirements'of section 10 of the Primary Election Law, providing ■ that every convention shall be called to order by the chairman of the committee with whom the call originated or by a person designated in writing ■ for that purpose by him, be complied with, the organization of the convention is not complete and it can neither transact business nor make valid nominations.

There can be no election of a temporary chairman of such convention except by compliance with subdivision *4*of section 8 of the Primary Election Law, which requires the custodian of primary records to prepare a certified statement of the result of the primary election and to make up the rolls of the convention of delegates elected thereat, etc.

Where the temporary chairman and secretary of such convention were elected by acclamation and not by a roll call of delegates and individual voting as required by section 10 of the Primary Election Law, their election as officers and the nominations made at the convention are void.

The temporary or permanent Chairman of such convention must take the oath required by section 10 of the Primary Law before exercising the functions of those offices and where such oath was not taken until after the convention, the nominations made thereat are void.

Appeal ‘by the petitioner, Michael G. Byrne, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of ¡New York, denying the petitioner’s motion to strike from the official ballot the name. of Bhinelander Waldo as the candidate of the Independence League for Congress in the fifteenth congressional district.

*Abraham, G.*Mayer, for the appellant.

*Daniel F.*Cohalan, for the respondent.

Per Curiam:

A convention of the Independence League to nominate a candidate for Congress from the fifteenth congressional district was duly called, to be held on the 7th of October, 1908, at No. 102 *335West One Hundred and First street, at nine o’clock p. M., and the chairman of the county committee of the Independence League designated one Nichólas P. Sinnott to call the convention to order. On the night .of the seventh of October, Nichólas P. Sinnott, the person designated by the chairman of the county committee, called, the convention to order and adjourned the convention until the eighth of October, at which time Mr. John McBroon was elected temporary chairman and Mr. Louis Wolf was duly elected temporary secretary. Subsequently the temporary chairman-was elected permanent chairman and the temporary secretary was elected permanent secretary, and Mr. Rhinelander Waldo was then unanimously nominated as the candidate for member of Congress from the fifteenth congressional district. A committee was then appointed to fill vacancies pursuant to section 66 of the Election Law* and the convention adjourned.

On October 9, 1908, what purported to be a certificate of this nomination, signed by the chairman and secretary, was filed with the board of elections. To this certificate objections were filed whereupon an amended or supplemental certificate duly verified was filed on October 17, 1908. Objection was made to this nomination before the board of elections and proof was taken by the commissioners. These objections were overruled, whereupon an application was made to the Special Term of the Supreme Court to reverse the decision of the board of elections on the petition of one Michael G. Byrne, as a citizen of the State of Mew York and a member of the Independence League party, which, application was denied, and from the order entered thereon the petitioner appeals.

There are two objections taken to this certificate which we deem fatal. Section 10 of the Primary Election Law (Laws of 1898, chap. 179, as amd. by Laws of 1899, chap. 173) provides that “Every convention shall be called to order by the chairman of the committee with whom the call originates, or by a person designated in writing for that purpose by such chairman, and such chairman or person so designated shall have the custody of the roll of the convention until it shall have been organ*336•ized. * *. * The temporary chairman of the convention shall ho. chosen on a call of the roll and as thé name of each delegate ■ "is called he shall rise in his place and declare his choice for such 'officer. The person who calls the convention to order shall exercise .no other function than that of calling the official roll of the dele.gates upon the vote for temporary chairman and declaring the result .thereof.”

It is undisputed in this case that this provision of the law was not complied with. " The person designated by the chairman of the county committee testifies before the board of elections of the city of Mew York that he called the convention to order about nine o’clock, but adjourned the meeting" until the following night because there were not enough delegates present to compose a quorum; that on the following night the convention reassembled and the person designated by the chairman of the county committee of the Independence League called the roll; that after the calling of the roll from which he testified he ascertained that there was a quorum present a""'temporary chairman .was elected by acclamation, and there was no other roll called after the formal calling of the roll to ascertain whether there was a quorum present. The person elected as chairman of the convention testified that Mr. Sinnott called the convention to order; that the temporary chairman was elected by acclamation, that he took the chair and a temporary secretary was elected in the same way.

The careful provisions of the statute providing for the temporary "organization of the convention require the person authorized to call "the convention to order to call the roll for the election of a temporary chairman. This provision initiates the meeting of the convention, and until this provision of the statute is complied with the organization of the convention is not completé and the convention is not in a position to transact business or make a valid nomination. To organize the convention the duties of a temporary chairman are required, and the statute provides how the temporary chairman shall be elected. It must be upon a call of the roll of the convention, “ and as the name of each delegate is called he shall rise in his place and declare his choice for such officer.” The roll -of the convention is provided for by subdivision 4 of section 8 of the act.(as amd. *supra).*That subdivision provides that “The *337custodian of primary records* shall * * * prepare certified statements of the result of the primary elections of each party participating therein and shall make up the rolls of the conventions for which delegates were elected at such primary elections, so far as such conventions are to be made up of such delegates, and add thereto the names of any delegates entitled to act iif such conventions from any of the political divisions of such county not included within any city or village to which this act is applicable, * * *, and shall promptly mail, and, if requested, deliver one copy thereof to the respective secretaries of the proper political committees of the several parties participating in such primary election; ” and it is this official roll of the convention that the person authorized to call the convention to order is required to call, and upon the call of which the temporary chairman of the convention shall be chosen. There can be no election of a temporary chairman of a convention except by a compliance with the provisions of this statute ; and there can be no-nomination by the convention until after the selection of a temporary chairman, and as the provision of this statute was not complied with the convention never was legally organized or authorized to make a nomination.

The other objection relates to the oath required to be taken by the temporary chairman. Section 10 of the Primary Election Law (as amd. *supra)*provides that *“*Before entering upon their duties, the temporary and permanent chairman *of*every convention, and the chairman and members of any committee on contested seats therein, shall respectively take an oath to faithfully perform the duties of their offices, which oath may be taken before any officer authorized by law to administer an oath, and shall form a part of, and be filed with, the records of the convention.” ■ This provision seems to require that before either the temporary or permanent chairman of the convention shall perform any of the functions of the office to which they have been elected they should take the oath prescribed, and this oath must be taken before an officer authorized by law to administer an oath, and shall *338form a part of and be filed with the records of the convention. It is necessary, therefore,, that this oath should be reduced to writing and authenticated by the officer before whom-it is taken. It may be that the formal certificate of the officer that the oath had been administered could be prepared and executed after the convention had adjourned, but in that case it must appear that the oath was actually administered to the temporary and perrtíanent chairman before they entered into the discharge of their duties. To the minutes of this convention, filed with the board of elections, there is annexed the oath of the temporary chairman, which deposes that he was the temporary chairman of the fifteenth congressional district convention of the Independence League party to nominate candidates for members of Congress, “ now being held at 102 West 101st Street, New York, on the 8th of October, 1908, and having been duly elected as such, I' do solemnly swear to faithfully perform .the duties of said office as permanent chairman of the said convention.” This was signed by the officer and was sworn to before a notary on the ninth of October, the day following that upon which the convention was held and the nomination made. The temporary chairman, therefore, swears that he will faithfully perform the duties of permanent chairman, and he takes that oath upon the ninth of October, the day after the convention was held and the duties had been performed. It is quite • apparent that this is not a compliance with the statute, and there is, therefore, no evidence that before the officer had performed his duty he took the oath that the statute requires.

As we think this certificate should have. been rejected by the board of elections upon these two grounds, it is not necessary to consider the other objections to the certificate taken by the appellant.

It follows that the order appealed from must be reversed, with ten dollars costs, and the application granted..

Present — Patterson, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs, and application granted.

*

See Laws'of 1896, chap. 909, § 66, as amd. by Laws of 1905, chap. 643,— [Rep,

*

 See footnote on p. 333.