Opinion
April 2, 1976
Appeal from order the Erie Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Goldman, Witmer, JJ. (Decided March 29, 1976.)
Order unanimously affirmed, without costs. Memorandum: Respondents E.J. Mahoney, a member of the Board of Elections of Erie County, and Dennis T. Gorski, a candidate for the Democratic National Convention for the 38th Congressional District, appeal from Special Term's order which provided that a certain certificate of substitution, previously filed with the Board of Elections of the County of Erie substituting petitioner, Gale Denn, as a candidate for the office of delegate to the Democratic National Convention for the 38th Congressional District of the State of New York in the primary elections to be held on April 6, 1976, was a valid certificate of substitution. Appellants argue that subdivision 4 of section 140 of the Election Law mandates that appended to the certificate of substitution shall be the affidavit of the persons signing the certificate that they were a majority of such committee on vacancies; and that the failure of the majority of said committee to sign such an affidavit renders the substitution invalid. While subdivision 4 of section 140 of the Election Law sets forth such a technical requirement, it has been previously held that a notarized certificate of substitution, virtually identical to the instant certificate, was in compliance with the applicable section (Matter of Dunst, NYLJ, Sept. 6, 1941, p 513, col 3, revd 262 App. Div. 957, revd 286 N.Y. 675). Appellants concede that the two persons who executed the certificate were in fact a majority of the committee to fill vacancies. Absent an allegation of fraud, we find that there has been substantial compliance with the Election Law (Matter of Turner v Lawley, 25 N.Y.2d 963; Matter of Rosen v McNab, 25 N.Y.2d 798; Matter of Lyman v Lawley, 37 A.D.2d 791).