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and when authorized by the board of supervisors the board of elections in any other county may, in its discretion, cause to be published, for each assembly district, within a county over which such board has jurisdiction, in pamphlet form, and at public expense a transcript of the registers of each election district in the assembly district, omitting all entries except the names, the residence addresses, and the party, if any, recorded opposite the respective names.

Derivation: Formerly § 42. Renumbered and amended by L. 1911, ch. 891, § 23; amended by L. 1913, chs. 587, 800; L. 1914, ch. 244; L. 1919, ch. 504; L. 1921, ch. 64, in effect March 9, 1921. Originally revised from Primary Election Law, § 3, subd. 10, as amended by L. 1903, ch. 111, § 6.

§ 23. Judicial review of enrollment.

If any statement in the declaration of any person, on the evidence of which his name was enrolled in the original registers for any election district by the custodian of primary records, or if any entry opposite the name of any person in such registers is false, or if any person so enrolled has died, or has removed from or no longer resides in such election district, any voter of the assembly district in which such election district is located (provided such voter is himself duly enrolled with the same political party with which the person, as to whom the application is made, was enrolled) may present proof thereof by affidavit to the supreme court, or to any justice thereof, in the judicial district, or to a county judge of the county, in which such election district is located. And thereupon such court, justice or judge shall make an order requiring the person against or as to whom the proceeding is instituted, unless he is shown to have died, as hereinafter provided. to show cause before such court, justice or judge, at time and place specified in such order, why his enrollment should not be cancelled, or, in case of his death, why it should not be stricken from the register. Such order shall be returnable on a day at

least ten days before a primary election, and a copy thereof shall be served on the person against whom the proceeding is instituted and on the custodian of primary records at least forty-eight hours before the return thereof, either personally or by depositing the same in the post-office of the city in which such election district is located, in a postpaid wrapper or envelope addressed to the custodian of primary records at this office, and to such person by his name at his present address, if known, and otherwise at the address which appears in the registers for such election district. If the person as to whose name the application is made is claimed to be dead, the order to show cause hereinabove provided for shall be directed to the custodian of primary records, and service thereof need only be made upon such custodian of primary records, such service to be made in the manner heretofore in this section specified; but an order requiring the custodian of primary records to show cause why the name of a person claimed to be dead should not be stricken from the register shall not be made unless the affidavit presented to the court, justice or judge by the voter instituting the proceeding shall state that such voter has personal knowledge of the death of the person with respect to whose name the application is made and unless such affidavit is substantiated either by a certificate of the health department or by other competent evidence of such death. The custodian of primary records shall produce before the court, justice or judge, the original enrollment declaration subscribed by the person against or as to whom the proceeding is instituted. The court, justice or judge shall hear the persons interested, and if it appears by sufficient evidence that any statement in the declaration of the person against whom the proceeding is instituted, on the evidence of which he was enrolled by the custodian of primary records, or any statement opposite his name in the columns of the register relating to residence or his qualifications as an elector, is false, or that such person is dead or has removed from or no longer resides in the election district for which he is enrolled, shall order the enroll

ment of such person cancelled, or in case of his death, that his name be stricken from the register, except as hereinafter provided. If at such hearing the person against whom the proceeding is instituted shall produce evidence that the custodian of primary records has incorrectly copied into the register the data contained in the declaration of such person, and that if correctly copied such person would be entitled to be enrolled in such election district, such order, instead of requiring his enrollment cancelled, shall require the correction of the register in accordance with such evidence. In either case the order shall require the custodian of primary records to cancel the enrollment or strike such name from the register, as the case may be, or to otherwise correct such enrollment books in accordance with such order. Upon the correction of such enrollment books in accordance with such order, the custodian of primary records shall certify such correction to the chairman of the general committee of each party to whom a duplicate set of enrollment lists has been delivered in pursuance of section sixteen of this chapter.

Derivation: Formerly § 43. Renumbered and amended by L. 1911, ch. 891, § 24; amended by L. 1919, ch. 504, in effect Oct. 1, 1919. Originally revised from Primary Election Law, § 3, subd. 11, as added by L. 1904, ch. 350.

Sufficiency of proof on application to strike name from enrollment.— The question of the sufficiency of an affidavit, on an application to strike a name from the primary enrollment, is of such public importance that the court will hear the case although the primary election has been held. Matter of Titus (1907), 117 App. Div. 621, 102 N. Y. Supp. 851, aff'd 188 N. Y. 585.

Where an elector, served by mail at his latest known address, has failed to appear in a proceeding to remove his name from the roll, and the affidavit showing his removal from that residence given, is not made by a lessee or occupant, janitor or proprietor of the premises but by an occupant of a house in the vicinity, and the affiant has no personal knowledge that the elector has actually moved from the election district as well, but merely states that fact as a conclusion, the affidavit is insufficient although uncontradicted to make it mandatory duty of the court to strike the name from the enrollment. Matter of Titus (1907), 117 App. Div. 621, 102 N. Y. Supp. 851, aff'd 188 N. Y. 585.

Although it seems that the Legislature may prescribe such rules and regulations applying to all the primary elections as it deems necessary and proper, yet, when the Legislature has not made adequate provision to protect an elector from having his name stricken from the roll without his knowledge,

the statute should be so construed as to afford him the necessary protection. Matter of Titus (1907), 117 App. Div. 621, 102 N. Y. Supp. 851, aff'd 188 N. Y. 585.

As to the sufficiency of proof on application to strike name from enrollment, see also Matter of O'Brien (1907), 117 App. Div. 628, 102 N. Y. Supp. 845, aff'd 188 N. Y. 585; Matter of McGuire (1907), 117 App. Div. 637, 102 N. Y. Supp. 856, aff'd 188 N. Y. 585.

24. Correction of enrollment with respect to persons not in sympathy with party.

If any person is not in sympathy with the principles of the political party with which such person is enrolled, any voter of the assembly district in which such election district is located (provided such voter is himself duly enrolled with the same political party with which the person as to whom the application is made was enrolled) may present proof thereof by affidavit to the chairman of the county general committee of the political party with which the voter enrolled, and the chairman of such county general committee shall issue a notice requiring the person against or as to whom the proceeding is instituted to show cause before such chairman of the county general committee, or a subcommittee appointed by such chairman, at a time and place specified in such notice why his enrollment should not be cancelled. Such notice shall be returnable on a day at least fifteen days before a primary election, and a copy of the affidavit shall be served on the person against whom the proceeding is instituted and on the custodian of primary records at least forty-eight hours before the return thereof, either personally or by depositing the same in the post-office of the city in which such election district is located, in a postpaid wrapper or envelope addressed to the custodian of primary records at his office, and to such person by his name at his present address, if known, and otherwise at the address which appears in the register for such election district. The chairman of such committee shall in his discretion personally hear the persons interested in the proceeding or appoint a subcommittee to take testimony, and in such event the action of the subcommittee shall not be final unless approved of by the chairman of such county general committee, and if it appears by sufficient evidence that such person is not in sympathy with the principles of the political party with which such person enrolled, the chairman of the county general committee shall cause

to be filed a certificate with the board of elections or with the custodian of primary records setting forth reasons why the enrollment of such person shall be cancelled, together with a record of the proceedings had in the matter. It shall be the duty of the board of elections or the custodian of primary records to make application to the supreme court or to any justice thereof in the judicial district, or to a county judge of the county, in which such election district is located, for an order requiring the person against or as to whom the proceeding is instituted to show cause before such court, justice or judge, at a time and place specified in such order, why the decision of the chairman of such county general committee should not be confirmed. Such order shall be returnable on a day at least five days before a primary election, and a copy thereof shall be served on the person against whom the proceeding is instituted at least forty-eight hours before the return thereof in the manner hereinbefore provided. The said court, justice or judge shall have power to examine fully into the proceedings taken before such chairman or subcommittee and to receive affidavits or other evidence as to the manner in which such proceedings were conducted, and shall determine whether or not said proceeding was fairly conducted and the finding made therein was made upon sufficient grounds upon the merits, and · he may approve or disapprove such finding as shall seem to him. to be required to do substantial justice to the party against whom the proceeding was instituted and without regard to technical requirements. The court, justice or judge upon approving of the finding of the chairman of such county general committee shall issue an order to the board of elections or to the custodian of primary records requiring the enrollment of the voter to be cancelled on the registers. A cancellation of enrollment, under this or the preceding section, shall be made by drawing a red ink line through the enrollment number of such person and through the name of the party, and by entering in the "remarks" column, at the extreme right of the register, the word "enrollment cancelled" and the date thereof.

Derivation: Formerly § 44. Renumbered and amended by L. 1911, ch. 891, § 25; amended by L. 1919, ch. 504, in effect Oct. 1, 1919. Originally revised from Primary Election Law, § 3, subd. 12, as added by L. 1904, ch. 488, § 1.

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