Opinion
Argued October 18, 1979
Decided October 19, 1979
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JAMES B. KANE, J.
Joseph F. Biondolillo for appellant.
Timothy A. McCarthy for petitioner-respondent.
Thaddeus Szymanski, County Attorney (Alan Gerstman of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs.
The Election Law mandates, in clear and unequivocal terms, that "[a] write-in ballot must be cast in its appropriate place on the machine, or it shall be void and not counted." (Election Law, § 8-308, subd 4.) Here, it was error for Supreme Court to validate a write-in ballot for the office of Common Council when such ballot was cast in the column designated for the office of County Executive. The plain language of the statute itself proscribes such result. It is noted that in Matter of Pauly v Mahoney ( 49 A.D.2d 1014), relied on below, leave to appeal was denied by this court ( 37 N.Y.2d 711). Our denial of leave to appeal has no precedential effect. (See Matter of Marchant v Mead-Morrison Mfg. Co., 252 N.Y. 284, 297-298 [CARDOZO, Ch. J.].)
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, without costs, and the petition dismissed in a memorandum.