Matter of Warsoff v. Cohen

Full title: In the Matter of LOUIS A. WARSOFF, Appellant, against S. HOWARD COHEN and…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 4, 1942

264 App. Div. 953 (N.Y. App. Div. 1942)

Opinion

August 4, 1942.

Order dismissing petition affirmed, without costs. The Board of Elections having rejected the petition, the burden was cast on the petitioner to establish that the petition contained the requisite number of valid signatures. ( Matter of McDonnell v. Cohen, 252 App. Div. 277; affd., 275 N.Y. 644.) Petitioner offered no such proof and the record is barren of proof that the petition contained a sufficient number of valid signatures to render it effective. Therefore, the Special Term was justified in dismissing the petition, and the order should be affirmed.

Hagarty and Johnston, JJ., concur;

Lazansky, P.J., concurs in the result. Taylor and Close, JJ., dissent and vote to reverse the order on the law and to remit the matter to Special Term for hearing with the following memorandum:

We are of opinion that this record, as matter of law, discloses that the applicant sustained the burden of establishing that his nominating petition contained 750 valid signatures. Therefore, it was error on the part of the learned court at Special Term to grant the motion to dismiss the petition in this proceeding.