PER CURIAM. Order affirmed, with $10 costs and disbursements, on the opinion of Lehman, J., at Special Term, with leave to plaintiff to serve amended complaint, on payment of costs in this court and in the court below. Order filed. WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD Where the prior judgment sought to be set up as a bar in the supplemental answer has been reversed, and the complaint dismissed, leave to serve such supplemental answer should be denied. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 842-846; Dec. Dig. § 280.*] Appeal from Special Term, New York County. Action by the Westminster Presbyterian Church of West TwentyThird Street against the Trustees of the Presbytery of New York. From an order denying plaintiff's motion for judgment on the pleadings, and from an order granting defendant leave to serve a second supplementary answer, plaintiff appeals. Order denying motion for judgment affirmed, order granting motion to serve supplementary answer reversed, and motion denied. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. Richmond J. Reese, of New York City, for appellant. Henry W. Jessup, of New York City, for respondent. PER CURIAM. The order denying the motion for judgment on the pleadings should be affirmed, without costs. As to the second order, inasmuch as the prior judgment now sought to be set up as a bar in the supplemental answer has been reversed, and the complaint dismissed, the order granting such leave should be reversed, and the motion denied, without costs. (Supreme Court, Special Term, Kings County. November 24, 1914.) 1. MANDAMUS (§ 23*)—CANVASS OF ELECTION RETURNS-COMPELLING CANVASS "CANDIDATE"-"PARTY CANDIDATE"-"INDEPENDENT CANDIDATE." Under Election Law (Consol. Laws, c. 17) § 358, subd. 4, as amended by Laws 1913, c. 821, providing, relative to the preparation of the ballot by a voter, that, to vote for any "candidate" not on the ballot, he shall write the candidate's name on a line left blank, in the appropriate place, a person so voted for is a “candidate," within section 381, authorizing the issuance of a writ of mandamus upon the application of any candi*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes date for a recount of the votes on ballots protested as marked for identification, or to determine whether any ballot and the votes thereon rejected as void shall be counted, notwithstanding section 3, subd. 18, as added by Laws 1911, c. 891, defining a "party candidate" as a person selected by a party to be its candidate for an office authorized to be filled at a general or special election, or at a town meeting, and subdivision 19, defining an "independent candidate" as a person selected by an independent body to be its candidate for an office authorized to be so filled. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 55-58; Dec. Dig. § 23.* For other definitions, see Words and Phrases, First and Second Series, Candidate.] 2. ELECTIONS (§ 159*)-BALLOTS-RIGHT TO VOTE FOR OFFICES OMITTED. Though the election officials fail to provide on the official ballot an appropriate place to vote for an office, a vacancy in which should be filled at an election, and though no voter applies to the Supreme Court or a justice thereof for an order requiring the correction of such error or omission, as authorized by Election Law, § 344, voters are not thereby deprived of their right to have the names of candidates for whom they vote, by writing their names upon the official ballot, canvassed and counted in favor of such person. [Ed. Note. For other cases, see Elections, Cent. Dig. § 124; Dec. Dig. § 159.*] 3. MUNICIPAL CORPORATIONS (§ 124*)-ALDERMEN-VACANCIES-CONSTITUTIONAL AND STATUTORY PROVISIONS-"ELECTIVE OFFICER." Under Greater New York Charter (Laws 1901, c. 466) § 1586, vesting in the aldermen of the city of New York all of the powers and duties of the several boards of supervisors theretofore existing, not transferred to administrative departments, bureaus, etc.; article 36 of the first state Constitution (1777), providing that nothing therein shall annul any charter to bodies politic made prior to the date it became effective; article 29 of such Constitution, providing that supervisors and other officers theretofore eligible by the people, should continue to be so eligible as directed by the Legislature; provisions of subsequent Constitutions, recognizing supervisors as constitutional officers; and Const. 1894, art. 3, § 26, providing for supervisors in each county not wholly included in a city, and that in a city including an entire county the powers and duties of such board may be devolved upon the municipal assembly, common council, or board of aldermen; and in view of the inherent powers and duties of aldermen of the city of New York, as provided in its charter and recognized in all of the Constitutions of the state-an alderman is an "elective officer," though the aldermanic district is in the county of Kings, and not within the territory constituting the city of New York prior to the enactment of the Greater New York Charter; and hence section 18 of that charter, providing that any vacancy among the members of the board of aldermen shall be filled by election by a majority of the members elected thereto, and that the person so elected to fill any such vacancy shall serve for the unexpired portion of the term, is invalid, so far as it provides that a person so elected to fill a vacancy shall hold office for a longer term than until January 1st following, under Const. art. 10, § 5, providing that in case of elective offices no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 290-297; Dec. Dig. § 124.* For other definitions, see Words and Phrases, First and Second Series, Elective Office.] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 4. MUNICIPAL CORPORATIONS (§ 124*)-ALDERMEN-ELECTION OR APPOINTMENT -CONSTITUTIONAL AND STATUTORY PROVISIONS. Under article 36 of the first state Constitution (1777), providing that nothing therein shall annul any charter to bodies politic made prior to the date of such Constitution, the right of the inhabitants of the city of New York to elect their aldermen is a constitutional right, which the Legislature cannot impair. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 290-297; Dec. Dig. § 124.*] Two applications, by Karl S. Deitz and by Philip Brady, candidates voted for at the election held on November 3, 1914, for writs of mandamus. directed to the Board of County Canvassers of Kings County, requiring it to perform its duty in the manner prescribed by law in the canvass of votes cast for the office of alderman from the Fifty-Second and Fifty-First aldermanic districts, respectively, of the City of New York. Peremptory writ granted on each application. John D. Mason, of New York City (Robert L. Luce, of New York City, of counsel), for petitioners. Harry E. Lewis, of Brooklyn, for August Ferrand. William W. Colné, Frank L. Polk, Corp. Counsel, of New York City, and Charles J. Druhan, Asst. Corp. Counsel, of Brooklyn, for board of county canvassers. Francis X. Carmody, of New York City, amicus curiæ. BENEDICT, J. These are two applications arising upon orders requiring the board of county canvassers of Kings county and the inspectors of election comprising the boards of election in certain election districts of the Tenth and Eleventh assembly districts of Kings county and of the Fifty-First and Fifty-Second aldermanic districts of the city of New York to show cause why peremptory writs of mandamus should not issue, directed to the said board of canvassers and the said inspectors of election, requiring them to canvass the votes cast in the Tenth and Eleventh assembly districts of Kings county and the FiftyFirst and Fifty-Second aldermanic districts of the city of New York for the office of alderman from the Fifty-First and Fifty-Second aldermanic districts, and to count and canvass the votes that were cast at the general election held on November 3, 1914, for the petitioners, Karl S. Deitz and Philip Brady, for the office of alderman in said districts. respectively, and to make a return of the votes so cast. These two applications were argued and submitted to the Special Term together upon November 20, 1914, and the facts involved in each application were practically the same, and there were no issues of fact arising upon the applications, but only questions of law, which were identical. The admitted facts which are submitted to the court in these applications are briefly as follows: At the general election held on November 4, 1913, one Ardolph L. Kline was elected as an alderman from the Fifty-First aldermanic district of the city of New York for a term of two years, beginning on January 1, 1914; and at the same election one Daniel R. Coleman was elected as alderman from the Fifty-Second aldermanic district *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes of the city of New York for a similar term. Each of the persons so elected duly qualified and entered upon the office of alderman from his respective district. Upon the 5th day of January, 1914, the said Ardolph L. Kline duly resigned his said office, and thereby a vacancy was created in the office of alderman from the Fifty-First aldermanic district of the city of New York. Upon the 25th day of June, 1914, the said Daniel R. Coleman died, and thereby a vacancy was created in the office of alderman from the Fifty-Second aldermanic district of the city of New York. The affidavit submitted by August Ferrand states that: "Deponent was elected to the place made vacant by the said Ardolph L. Kline for the unexpired portion of the term." The affidavit submitted by William W. Colné states that: "Deponent was elected on June 30, 1914, to the place made vacant by the said Daniel R. Coleman for the unexpired portion of the term." It will be noticed that the answering affidavits of Messrs. Ferrand and Colné contain no statement that either of them was "duly" elected to fill the vacancy created as aforesaid, nor do they state in what manner such election was brought about. No point was, however, raised by the petitioners upon the argument as to this informality of statement, and the case was presented upon the theory that they were elected to fill the vacancies in the manner provided by section 18 of the Greater New York Charter (Laws 1901, c. 466), which provides as follows: "Any vacancy which may occur among the members elected to the board of aldermen shall be filled by election by a majority of all the members elected thereto, of a person who must be of the same political party as the member whose place has become vacant; and the person so elected to fill any such vacancy shall serve for the unexpired portion of the term." On behalf of the petitioners, however, it is claimed that the two vacancies thus created must be filled at the next general election occurring after a vacancy, to wit, at the general election held on November 3, 1914, and that the person receiving the highest number of votes for the said office of alderman in each of said aldermanic districts at such general election would be entitled to hold said office for the unexpired term of the said Kline and Coleman, respectively, from January 1, 1915, until December 31, 1915. The petitioners do not dispute the fact that Messrs. Ferrand and Colné are now severally holding the office of alderman, and they do not raise any question as to the legality of such holding. Indeed, they recognize in their petitions that Messrs. Ferrand and Colné are, by virtue of holding the office of alderman, respectively, members of the board of canvassers of Kings county (see paragraph ninth of petitions). The petitioners claim that vacancies were in the manner hereinbefore stated created in the offices of alderman from the said Fifty-First and Fifty-Second aldermanic districts which were to be filled at the general election held on November 3, 1914, and they further show, on information and belief, that at the election held upon that day votes were cast for these petitioners for aldermen from the said districts, respectively, to fill the said vacancies by persons voting in a number of the election districts of the said Tenth and Eleventh assembly districts who would be entitled to vote for alderman in said Fifty-First and Fifty-Second aldermanic districts, and they show, further, the sources of their information as to the casting of such ballots. They allege that all of the votes cast in said districts for the office of alderman were cast for these petitioners in their respective districts. It developed on the argument that these petitioners believe that such votes were cast by voters writing the name of the respective petitioner on the ballots with a designation of the office. They allege further that the election inspectors in the election districts in which such ballots were cast for the petitioners did not count the said ballots for the petitioners for the office of alderman, nor make any record thereof in the return of the said election districts, but placed the same in the envelopes for void and protested ballots. Upon these facts the petitioners base their application for a peremptory writ of mandamus directing the board of county canvassers of Kings county to canvass and count the said ballots thus voted for the petitioners for the office of alderman in their favor and to declare the petitioners to be duly elected as aldermen in the Fifty-First and Fifty-Second aldermanic districts of the city of New York, respectively, for terms severally beginning on January 1, 1915, and expiring on December 31, 1915. On behalf of the board of county canvassers John Diemer states in his answering affidavit that no votes were canvassed in the Fifty-First and Fifty-Second aldermanic districts for aldermen, for the reason that no return statement or tally sheet showing that any such votes were cast or canvassed for aldermen in said aldermanic districts were received by the said board of county canvassers from the inspectors of election for districts within said aldermanic districts, and that no election to fill a vacancy in the office of aldermen in the said aldermanic districts was called to be held on November 3, 1914, and that no nomination for said office of alderman in said districts was made by any political party or by any independent certificate of nomination or otherwise prior to said election. [1] The counsel for Messrs. Ferrand and Colné at the outset raised a preliminary question concerning the right of the petitioners to maintain these proceedings. He claims that the petitioners are not "candidates" within the meaning of the provisions of section 381 of the Election Law (Consol. Laws, c. 17), and therefore are not entitled to the relief asked for. He contends that a candidate under the provisions of this statute must be either a "party candidate" or an "independent candidate," which are defined in section 3, article 1, subdivisions 18 and 19 of the act, as added by Laws 1911, c. 891, as follows: "18. The term 'party candidate' or 'party nominee' means a person who is selected by a party * ** to be its candidate for an office authorized to be filled at a general election, or at a special election held to fill a vacancy in such office, or at a town meeting." "19. The term 'independent candidate' or independent nominee' means a person who is selected by an independent body to be its candidate for an office authorized to be filled at a general election, or at a special election held to fill a vacancy in such office, or at a town meeting." |