The sun. [volume] (New York [N.Y.]) 1833-1916, 1908-07-28
or MCARREN HEARD
FIGHT FOR ELECTION OFFICIALS
IN APPELLATE COURT.

The Senator's Lawyer Maintains That
Justice Kelly Erred In Deciding That
the State Convention Is Supreme DE
cIsion Il BE Handed Down To-day.
A special session Of the Appellate Di-
vision Of the Supreme Court was held yes
terday in Brooklyn to hear the appeal OF
Senator P. H. McCarren from the recent
decision Of Justice Kelly denying him
a mandamus to compel the Board Of Eleo-
tions to accept his list Of election inspec-
tors and reject that furnished by the anti
| McCarren faction, which had been rec
| ognized as the regular party organization
by the Democratic State convention.
Those who participated in the hearing
were Justice jerks, who presided in the
| absence Of Presiding Justice H~irsohberg,
and Justices Gaynor, Woodward. Rich and
| Hooker. Both Democratic factions were
well represented among the spectators.
Isaac NJ. Kapper appeared as counsel for
McCarren and e~x-Surrogate James c
Church for he ants, while Assistant Cor
poration Counsel Farley represented the
Boari Of Elections,
Nh. Church raised an objection against
hearing the appeal at this time out Of its
order ard without compliance with the
usual formalities. but after a brief CONSUL
tation among the Justices it was an
nounced that the case would 60 on to-
day.
The arguments on both sides we're sub
stantially the same as presented to jus
the Board Of Elections had rejected the
McCarren list. Mr.. Kapper .contended
that section 10 of the election law. which
Justice Kelly finds controlling, was re-
pealed by the primary election law. He
declared that the present situation was
the sections Of the primary law which
provide the method and the machinery
Tor finding out in any locality Just what
faction is in the ~ascendanoy by reason OF
plurality. He insisted that it would be
wrong In the law az well as in ethics to
have made supreme by a State convention
a faction defeated at the regular primary
election.
Mr.. Kapper maintained that the con-
troversy over the appointment Of the
been thought Of in any rational mind but
for the action of certain political powers
acting in the last Democratic conven-
ton In hostility TO the ~relator, Senator
| McCarren, personally 1t was wholly
beside the marx. Mr. d kdsPPer said; as to
seating delegates elected at the March
primaries, as the controversy Deepen ded
upon who and what constitutes the legal
county committee Of XII. ga county for
the purpose Of authentioating the requisite
list OF election, o%fioials as required by
power in the State convention to create
a county committee would break GOWN
and destroy the primary law, he said:
Mr.. Church commended that Justice
Kelly had decided correctly On the one
| point at ~issue-where the power rested
to decide between factions. Before the
enactment Of the primary law. he said,
IL rested with the last State convention
OF the party in which the faction fight
was. He insisted that the primary law
did not in any way repeal or modify the
provisions Of the general election law.
Assistant Corporation Counsel Farley
said that the Boa I'd Of Elections had no
factions and wished only to AVE the case
settled promptly. The short brief he
submitted merely set forth the facts in
the controversy and took no side in the
contest. -. p
It was announced at the close OF the
hearing that the court would make it's
decision to-day. - a. f.,