Since the amended complaint in this case is attacked as insufficient in law, we examine its allegations to see whether they, taken as true for present purposes, spell out a cause of action.
Defendants, sued in their individual capacities and not as public officers, were, in 1950, the members of the Board of Elections of the City of New York. In July of that year, says the amended complaint, plaintiff duly filed with that board "a petition in the manner and form prescribed by the Election Law of the State of New York, consisting of 307 pages, numbered consecutively, containing 3,092 signatures, the dates when signed, the residence, including the election and assembly districts, of the signatories and an affidavit, at the bottom of each sheet, of a duly qualified voter of the State of New York authenticating
Paragraph 7 of the amended complaint says that, on July 31, 1950, defendants, acting as the board of elections, held a hearing as to the objections, at which hearing the board received the report of its clerks, who reported to the board that plaintiff's petition contained a total of 3,092 signatures but that 721 thereof were invalid, which left 2,371 valid signatures, and that such a petition required 350 valid signatures, only. That report, alleges plaintiff, "was not challenged or disputed by the objectors, the candidate or defendants and the same was duly accepted and adopted by defendants." The petition, according to the amended complaint, actually did contain 2,371 valid signatures, just as reported by the board's clerks, and was "a good, sufficient and valid designating petition." It was, therefore, pleads plaintiff, the duty of defendants to put plaintiff's name on the appropriate ballot for the primary election of August 22, 1950.
Paragraph 12 of the amended complaint says that "defendants arbitrarily, wrongfully and illegally failed, neglected and refused to place the name of plaintiff upon said ballot for the primary election as aforesaid and plaintiff's name did not appear thereon." The remaining allegations are these: that by reason of defendants' nonfeasance plaintiff was deprived of his right to be a candidate, and that he has been further damaged in that he had expended a considerable sum for printing the rejected petition, and for other campaign expenditures.
Both courts below, denying the motion to dismiss, held the pleading sufficient, the Special Term opinion relying largely on
Defendants' attack on the pleading in this court may be summarized thus: (1) Since the board is authorized by law to pass on such questions, its members may not be held personally liable for damages for any determination thereon, even though erroneous, especially in the absence of any allegation of malice or bad faith; and (2) that plaintiff's damages, if any, were caused by his own failure to seek the summary remedy provided by the Election Law (§ 330).
It is settled that boards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and that such extrinsic matters, if any, are to be determined in court proceedings only (Matter of McGovern [Olson], 291 N.Y. 104, 108). In other words, the board's power to determine the validity of a nominating petition "extends only to ministerial examination" and the board "may not go behind a petition designating candidates for primary election" (Abrahams' New York Election Law, p. 339; see Gassman's Election Law, § 41). It follows that, when plaintiff's petition was objected to, the board could do no more than scrutinize the face thereof, as to compliance with the Election Law. If, as plaintiff alleges, such examination showed compliance with the statute, the board was functus officio. It was bound to go no further, but to accept the document and put plaintiff's name on the ballot.
But, say defendants, that duty of the board was one owed to the public generally, not to any one individual such as plaintiff, and its breach was, therefore, not an actionable wrong to plaintiff. Such a view of the law is directly opposed to the holding in Frank v. Eaton (225 App. Div. 149 , supra) (and
Frank v. Eaton (supra) is authority, too, for rejecting the argument (adopted by the trial court in that very case) that plaintiff's only remedy was by court review of the board's action, under section 330 of the Election Law. The remedy under that statute, wrote the Appellate Division, "is not declared to be exclusive and is to be construed as cumulative." (P. 151.) Here, again, we agree. If it be true, as alleged, that these defendants arbitrarily rejected an entirely valid nominating petition, then a wrong to plaintiff was complete and immediately actionable, even though, by a different sort of legal proceeding, the board's determination, as such, could have been reviewed in the courts. We see nothing, in the language or purpose of section 330, to indicate otherwise. The four New York, and the two Federal decisions
But appellants insist that this amended complaint, since it lacks allegations of "malice" or "bad faith", charges no more than a mere mistake. Frank v. Eaton (supra) at least suggests and Moore v. Kessler (supra) flatly holds (see, also, 29 C. J. S., Elections, § 64, p. 89, "Action by candidate") that there is liability, malice or no, for denial of rights in regard to candidacies. We will deal with that question when we come to it, but it is not presented by this motion. By moving to strike the pleading for insufficiency, defendants have authorized us, temporarily, to accept its statements as true. Surely, this amended complaint accuses defendants of more than a mere good-faith mistake, when it asserts that the petition was entirely sufficient on its face, that the board's clerks so reported to the
The order should be affirmed, with costs, and the question certified answered in the affirmative.
Order affirmed, etc.