New-York tribune., 1908-07-29
VICTORY FOR M'CARREN
OFFICIALS HIS.
appellate DiCisiOn Decision Likely
To Be Carried Up.

Senator Patrick H McCarrens political fortunes
in Brooklyn a much brighter aspect last
night than they have since the last Democratic
State Convention. owing to a favorable decision
from the Appellate Division of the Supreme Court
in his litigation the election patronage BY a
unanimous decision the Appellate Division reversed
the decision of Justice Kelly, who had declined to
grant writ of mandamus directing the Board of
Elections to appoint McCarrens nominees cleo
ton officers.
While all the justices concurred in the decision
two opinions were written, one by Justice Rich and
the other by Justice Gaynor. The latter expressed
the view that the state convention supreme
but gave way to the majority and made the deci-
sion unanimous In the words of the court the
decision made mot a matter Of discretion
but a matter of law thereby granting the
Board of Elections the privilege of taking the case
TO the Court of Appeals, which will undoubtedly
be done.
Ex-sherin F1aherty said last night that an effort
would be made to get an extra session of the
Court of Appeals, which otherwise would not meet
again until October.
In his opinion Justice Rich wrote the history of
the litigation, which grew out of the action of
the Board of Elections in recognizing the dictum
of the last state convention that McCarren's dele
gates irregular Speaking of the allegation
that the McCarren faction had been dsloyal to the
state ticket in 1885, Justice Rich sad
II surely cannot be contended that the recogni-
9R Gf bod 1aa eG
the primary law the constitution of stated COM
ton of regularity might permit such body to con-
stute It's committees in any manner it chose. The
county committee represented by relator elect
ed at the primary election at great expense to the
city, and ii is not contended that the committee
represented by Mr. Williams were ever even voted
for at the primaries.
The party treachery alleged to have been
committee of that year all occurred prior to the
holding of the primaries of 1907 Those primaries
were held in pursuance of law, and the result
acQuesced in to the extent of holding primaries OF
1907 In reference the suggestion to the
thority of the court only necessary to that
the Legislature has regulated the conduct Of the
primaries by statute, and any party feeling ag-
grieved by its operation may enlist the AID or the
court in constituting IT.
Justice Gaynor. in the opinion written by him.
declared that if the county committee of a party
should withdraw from the party by supporting the
candidates of the opposite party, It would no long
er be regular, only faction at best The state
convention. he says. Is concededly the sole Judge
of the party faith and principles and could cast its
delegates out and recognize another faction instead,
as was done by the last state convention.
1.-The courts have power TO define faction,
or construe the said laws for the purpose of oe
6ning a faction he goes to say, in order to
decide that there factions before the state
convention That question is left now. as 1t always
has been in this state to the convention itself.
a majority of the court, and I yield my judgment
TO theirs the willingly as have expressed
the same views in the case of The People VS.. Glea-
son several years ago. and mistrust that for that
reason may be unduly tenacious OF them now.