Opinion
277 A.D. 326 99 N.Y.S.2d 1 In the Matter of JOHN J. CARUSONE et al., Appellants-Respondents, v. VINCENT VARNEY et al., Constituting the Board of Elections of Saratoga County, Respondents, and KETURAH F. DUNN et al., Respondents-Appellants. (Appeals Nos. 1 and 4.) In the Matter of KETURAH F. DUNN et al., Respondents, v. VINCENT VARNEY et al., Constituting the Board of Elections of Saratoga County, Respondents, and JOHN J. CARUSONE et al., Appellants. (Appeal No. 2.) In the Matter of WILLIAM E. BARBER, Respondent, v. VINCENT VARNEY et al., Constituting the Board of Elections of Saratoga County, Respondents, and WILLIAM A. SHERMAN, SR., et al, Appellants. (Appeal No. 3.) (Also 41 Related Proceedings in Appeals Nos. 1 and 4 and 42 Related Proceedings in Appeal No. 2.) Supreme Court of New York, Third Department. August 9, 1950
CROSS APPEALS, in proceeding No. 1, from an order of the Supreme Court at a Special Term (RYAN, J.), held in Clinton County and entered August 4, 1950, in Saratoga County. Petitioners, appellants-respondents, appeal from so much of said order as dismissed petitions in a proceeding to review certain official actions of the Board of Elections of Saratoga County. Defendants, respondents-appellants, appeal from so much of said order as determined that certain designating petitions filed with the Board of Elections of Saratoga County were invalid as of the date of filing, upon the ground that such petitions failed to comply with the provisions of section 135 of the Election Law.
APPEAL, in proceeding No. 2, from so much of an order of the Supreme Court at a Special Term (BEST, J.), held in Fulton County and entered August 2, 1950, in Saratoga County, as denied a motion to vacate an order of said court, entered July 31, 1950, in Saratoga County, which amended nunc pro tunc petitions designating petitioners-respondents as candidates for the party position of Republican County Committeeman for election district No. 1 of the town of Ballston, Saratoga County, to be voted for at the primary election of such party to be held on August 22, 1950.
APPEAL, in proceeding No. 3, from an order of the Supreme Court at a Special Term (RYAN, J.), held in Clinton County and entered August 4, 1950, in Saratoga County, which restrained the Board of Elections of Saratoga County from placing on the official ballot the names of defendants-appellants William A. Sherman, Sr., and Marjorie Dyer, as candidates for the party position of Republican County Committeeman for election district No. 1 of the town of Northumberland in Saratoga County to be voted for at the primary election of such party to be held on August 22, 1950.
COUNSEL
Patrick J. Keniry (Harold E. Blodgett of counsel), for John J. Carusone and others, petitioners in proceeding No. 1 and defendants-appellants in proceeding No. 2, and for William E. Barber, petitioner in proceeding No. 3.
Leary, Fullertons&sNeddo (James A. Leary of counsel), for William A. Sherman, Sr., and another, defendants-appellants in proceeding No. 3, and for Keturah F. Dunn and another, defendants-appellants in proceeding No. 1 and petitioners in proceeding No. 2.
John W. Nichols, County Attorney, for the Board of Elections of Saratoga Springs, respondent.
Per Curiam.
These appeals involve primary designating petitions for the nomination of Republican County Committeemen for the Assembly District of Saratoga County. Certain petitions were amended nunc pro tunc, under the authority of an order granted by Mr. Justice BEST, so as to show the election districts for which the designations were made. Other petitions, not so amended, and which failed to show the election district immediately following the name of each candidate, are stated to have been held invalid under the order of Mr. Justice RYAN. We do not, however, construe his order to that effect since his final determination, except in one instance, was to dismiss the proceedings.
The form of a designating petition for a primary election is prescribed by statute. (Election Law, § 135.) We are required to give the statute a liberal construction where mandatory provisions are not involved (Election Law, § 330; Matter of Whiting v. Taub, 187 Misc. 660).
The clear purpose of enrolled voters who seek to designate candidates should be given effect if possible, and not frustrated by technical objections relating to matters not of a vital and mandatory nature. It will be noted that in most of the cases where there has been a judicial rejection of a designating petition some fraud, deception or confusion existed as to signatures. Here no such difficulty arises.
Some of the designating petitions stated that the 'public office or party position' designated was 'committeeman' without stating that 'county committeeman' was intended. In these and some others in which 'county committeeman' was stated, there was a failure to state in what district of what town or city it was intended that the committeeman was to serve.
But in each instance the 'place of residence' of the designee was stated, and the election district, as well as the residence, city or town, of the signatories to the petition was shown. These omissions were not fatal to the designating petitions. The places of residence of the designees are given and the information concerning the signatories supplies sufficient indication of the election district intended. The residence of all signatories within single election districts in the various petitions suggests a county committeeman rather than a State committeeman, was intended to be designated.
We feel therefore that the Board of Elections properly accepted the petitions in the form in which they were presented. In view of this holding most of the issues relating to the jurisdiction of Mr. Justice BEST are academic.
The order in appeal No. 1 should be affirmed, without costs, except as to the paragraph wherein the petitions were said to be invalid. The order in appeal No. 2 should be affirmed, without costs.
The order in appeal No. 3 should be reversed, on the law and facts, without costs, and the Board of Elections of Saratoga County is directed to place on the official ballot of District No. 1 of the town of Northumberland the names of William A. Sherman, Sr. and/or Marjorie Dyer as candidates for the party positions of members of the Saratoga Republican County Committee.
The order in appeal No. 4 should be dismissed, without costs, on the ground that no appealable question is presented by the record.
FOSTER, P. J., HEFFERNAN, DEYO, BERGAN and COON, JJ., concur.
Order in appeal No. 1 affirmed, without costs, except as to the paragraph wherein the petitions were said to be invalid.
Order in appeal No. 2 affirmed, without costs.
Order in appeal No. 3 reversed, on the law and facts, without costs, and the Board of Elections of Saratoga County is directed to place on the official ballot of District No. 1 of the town of Northumberland the names of William A. Sherman, Sr. and/or Marjorie Dyer as candidates for the party positions of members of the Saratoga Republican County Committee.
Order in appeal No. 4 dismissed, without costs, on the ground that no appealable question is presented by the record.