Opinion
Argued October 16, 1974
Decided October 18, 1974
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GEORGE L. COBB, J.
Prescott C. Sook for appellant.
Louis J. Lefkowitz, Attorney-General ( William J. Kogan and Ruth Kessler Toch of counsel), for State Board of Elections, respondent.
John W. Tabner for Ann L. Monroe, respondent.
The Judicial Convention of the Conservative Party for the Third Judicial District was convened on September 14, 1974. Mr. Justice STALEY and Mr. Murray were duly nominated for designation as candidate of the Conservative Party for election as Justice of the Supreme Court in the Third Judicial District.
A motion was adopted with but a single dissenting vote that a first ballot be taken in three categories: for Mr. Justice STALEY, for Mr. Murray, and for no designation of any candidate, with the added provision that if there were no majority in any category on the first ballot a second ballot then be taken between the two highest categories.
On the first ballot the tally was eight for Mr. Justice STALEY, seven for Mr. Murray, and five for no designation. No category having received a majority, the chair called for the second ballot between Messrs. Staley and Murray.
On the second ballot the count was 10 for Mr. Murray and 9 for Mr. Justice STALEY, with one delegate answering "no vote". The chair thereupon declared Mr. Murray the party's candidate.
In this proceeding it is sought to challenge Mr. Murray's designation. We conclude that the designation was properly made.
Action at this Judicial Convention was taken pursuant to article VIII of the Rules and Regulations of the Conservative Party of the State of New York, touching on "Judicial District Conventions". Section 4 of that article, after providing that a quorum is a "majority of the total number of delegates", continues: "All nominations at any convention shall be made by a majority of the delegates present and voting".
We conclude that a substantive distinction is intended by the words "and voting". In that view on the second ballot there were 19 delegates present and voting. The delegate answering "no vote", in the context of this meeting explicitly and effectively manifested his desire not to be counted in the tally. The 10 votes for Mr. Murray were thus a majority of the votes of the delegates present and voting. We note additionally that the chairman of the convention reached the same conclusion and declared Mr. Murray the party's judicial candidate. No exception was thereafter taken or objection raised to this ruling prior to the adjournment of the meeting of the convention.
Accordingly the order of the Appellate Division should be reversed, and the judgment of Supreme Court dismissing the petition reinstated.
Chief Judge BREITEL and Judges JASEN, JONES and RABIN concur in Per Curiam opinion; Judges GABRIELLI and WACHTLER dissent and vote to affirm on the memorandum at the Appellate Division; Judge STEVENS taking no part.
Order reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated.