New-York tribune., 1903-04-18
|DEVERY TO KEEP ON FIGHTING.
APPELLATE DUISION DECIDES HE MADE NO DE
U1ND FOR RIGHT He SOUGHT
GROUNDS FOR DECISION-
Justice Fan Brunt Calls Lac IN
constitutional.

constitutional.
In an opinion written by Justice lngrahalll' III
which all the justices concurred. handed down
yesterday The Appellate Division reversed the
order of Justice Leventritt requiring the Tam-
MANY Hall general committee to admit Peter D.
Garvey. Devery's man, from the IXth Assembly
District, and that all the privileges as a mem
Der of the executive committee for the LAIN
District be accorded to him. which was equlva-
lent to giving Devery seat in the executive
committee.
The Appellate Division reversed the Verolct
on several grounds. chief among them nelhg
that Garvey did not begin his proceeding on
behalf of others or 10 enforce the rights or
others to an office to which they were elected
and that the only right he could enforce was
the right to be recognized as member OF the
general committee which was not denied 10 hii'
according to his statement.
The opinion, after saying it seemed TO the
court that the denials to the regularity OF the
primary election when Garyey was elected, mace
by the respondent had to be disposed OF, ana
that the only way in which such an issue OF
fact could be disposed of was by trial under an
alternative writ, and quoting the ground already
mentioned as reasons why the mandamus should
not have been issued, continued:
There is nothing in this that justifes the
court in requiring the executive committee of
county city committee on the application OF
member of the committee TO recognize an un-
named person as member of an executive commit
tee upon unsupported allegation in the petition;
the executive committee had agreed to recommend
2e a 6omme f m s so @ Elected
sents himself to the executive committee with prop
such member. "a and such claim is refused. it will
then be time for him to apply for rels1 pqt IL is
or has been refused the right to which ne was en-
The provision of Section II of the Primary Elec-
ton law giving to the Supreme Court or Ju@stlceS @
dction upon the complaint Of any citizen TO re
view The aston or pegleS oe OF o 0fg g %t the court
in granting mandamus upon the application OF a
Der Of an executive committee when such uIl- N
named person has never applied for recognIuon IN oa
anber Of fRe the se9n the rsh' 70
But. in addition to this, can find no provision
which compels the general committee at ALL or that
executive committee Of the general committee
ing that the rules of the general committee for 1902
provided for an executive committee when the
1902 a resolution was proposed and unanimously
adopted which provided for an executive commit
tee and prescribed how it should be appointed
n There + is nothing IN the aw @ hI acton ctf " The
objects which are to be regulated by the rules ana
The statute expressly gives to the members OF the
County Committee. when they meet TO 3 orgaf2s 3nZ
and it is only when they fail to adopt rules and
BY the last preceding tite County Committee
main in full force and effect The subsequent pro
vision as to the amendment OF rules applles 70
subsequent amendments Under the rule ttas as
4%1epTSd % at eS ees bisric 2t 'e Was 9of athorized to
+ me 1aSn6noS ~ E1arUti,,a Committee: the
lhed rules, should be filed with the custodian OF
In case that PROVISION is not complied with and
the fact that certified f9Py & OF sven ian aenaed @ rue
does not affect the petition toms or re66 ene t his aef
Committee to recognize as member Of the E.xeeu-
tive Committee any person that presented hlmselt
and his associates
I therefore think that neither upon the facts nor
the law has the relator shown himself entitled 10
a mandamus. Every fact which bears
refusal by the respondents to recognize the
or his associates as a member of the committee
is denied. and the person that the reator seeks to
have recognized as a member of the Executive
COMMITTEES is not shown to have been refused the the
he made any demand to be recognized.
Justice O'Brien in concurring opinion says:
1t is conceded that the relator was duly elected
a member of the Democratic General Committee,
rights conferred upon the members elected to this
general committee from the IXth Assembly Dis
existed and applied to the preceding body he and
his associates from that district prepared to
suggest one (whose name is not given) as their
choice for membership on the executive committee.
What may have been the scope and duties of such
executive committee it is unnecessary for US TO
determine. 1t being sufficient to say that whatever
rights the members of the general committee
elected from other districts had the same rights
shared by the members elected from the
IHth Assembly District with respect to the selec-
ton OF one OF their nun1Der lot membership upon
the executive committee upon any of the COM
mittees which, under tie rules ana regulations,
to be made up by each district electing
member thereof.
We think too. that the undiSputed inference is
that a notice of protest served against the
IXth Assembly District, and while we do not re
gard such protest as in any way lmpalrtng the
rights of the relator a member of the general
committee still the resolution which was adopted
in effect amended the rules and regula they
existed in 1902.
Presiding Justice Van Brunt writes concur
ring opinion of eighteen words, saying that the
proceedings should be dismissed because Of the
unconstitutionality of the law involved.
Abram L. Elkus. counsel for Mr.. Devery, said
last evening:
The effect of the Appellate Division decision Is
ton his place a member of the county com
u1ittee The court holds however, that Mr. DeVery
SHOULD have demanded recognition at a meeting OF
the executive committee before the mandamus was
Ycyht