Opinion
Argued September 2, 1975
Decided September 3, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALFRED J. CALLAHAN, J.
Paul A. Victor, William McGowan, Joel Mayer and David Rauscher for Anthony Mercorella and another, appellants.
Kenneth G. Schwarz for Louis C. Benza, respondent.
MEMORANDUM. Special Term, confirming the report of a referee, granted a petition to invalidate the petition designating Louis C. Benza as a candidate for the Democratic Party nomination for the office of Judge of the Civil Court of the City of New York, Bronx County, and, in a second proceeding, dismissed the petition to validate said designating petition. Citing, inter alia, Matter of Lerner v Boucher ( 22 N.Y.2d 767) and Matter of Aronson v Power ( 22 N.Y.2d 759), the referee found that certain irregularities, improprieties and fraudulent practices permeate the designating petition.
On appeal, the Appellate Division reversed, on the law, the judgments as entered stating that "[n]o sufficient evidence appears in the record to indicate that the petition was so permeated by fraud, particularly with reference to the signatures obtained in the public places, that the petitions containing the signatures so obtained should have been totally invalidated." Based on the record in this case, the conclusion of the Appellate Division, arrived at as a matter of law, was erroneous. It cannot be said as a matter of law that there were insufficient findings in the referee's report of "irregularities, improprieties and fraudulent practices" which permeated the designating petition to permit a conclusion as a factual matter that there was permeation. In the status of this appeal, of course, this court, unlike the Appellate Division, has no power to review the facts.
The order of the Appellate Division should be reversed, without costs, and the matters remitted to the Appellate Division for review of questions of fact (CPLR 5613).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order reversed, without costs, and matters remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.