Opinion
December 26, 1962
In a proceeding under section 330 of the Election Law to set aside the primary election held in Queens County on September 6, 1962, for the Democratic party positions of Assembly District Leaders, Male and Female, in the Seventh Assembly District, Part B of that county, and for county committee member, and to direct a new primary election for said positions, the three petitioners appeal from so much of an order of the Supreme Court, Queens County, dated October 15, 1962 and made after a hearing, as dismissed the petition of petitioners Gross and Schwarze, and as failed to grant petitioner Karmel's petition for a new primary election. Order, insofar as appealed from, affirmed, without costs. The record discloses the presence of various irregularities which were untainted by fraud. Conceivably, these irregularities could have affected the outcome, but in our opinion the probabilities repel this conclusion. Under such circumstances the elections will not be overturned ( Matter of Badillo v. Santangelo, 15 A.D.2d 341, 342; see, also, Matter of Creedon, 264 N.Y. 40; Ginsberg v. Heffernan, 60 N.Y.S.2d 875) . Moreover, petitioners' representatives took no steps to enforce the prescribed procedure (see Election Law, arts. 8, 9) as to any irregularity which could have affected the outcome. Consequently, petitioners must be deemed to have waived the irregularities ( Matter of McGuinness v. DeSapio, 9 A.D.2d 65, 73-74; Ginsberg v. Heffernan, supra). Ughetta, Acting P.J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.