Opinion
January 27, 1986
Appeal from the Supreme Court, Westchester County (Stolarik, J., Wood, J.).
Appeals from the order entered December 5, 1985 dismissed, without costs or disbursements. No appeal lies from a portion of an order directing a hearing to aid in the disposition of an application for relief (cf. Bagdy v Progresso Foods Corp., 86 A.D.2d 589; Astuto v New York Univ. Med. Center, 97 A.D.2d 805; Barbarita v Shilling, 115 A.D.2d 630).
Appeal and cross appeal from the order entered December 17, 1985 dismissed, without costs or disbursements (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on said appeal and cross appeal have been brought up for review and have been considered on the appeal and cross appeal from the judgment entered December 23, 1985.
Judgment modified, on the law, by (1) deleting the provision thereof which granted that branch of the petition which sought the casting and canvassing of the affidavit ballot of Rolf Lunde, and substituting therefor a provision denying that branch of the petition, and (2) deleting the provision thereof directing the casting and canvassing of the absentee ballot denominated respondents' exhibit B and substituting therefor a provision directing the casting and canvassing of the absentee ballot denominated respondents' exhibit C. As so modified, judgment affirmed, insofar as appealed and cross-appealed from, without costs or disbursements.
Under the clear wording of Election Law § 16-106, the Supreme Court has jurisdiction to review the casting or refusal to cast of affidavit ballots by a board of elections. We have also previously held that the court has jurisdiction to determine the validity of the registration of an affidavit ballot voter (Matter of Nicolaysen v D'Apice, 100 A.D.2d 501, 502).
It is not disputed that voter Lunde was properly registered when he attempted to vote in the November 5, 1985 general election. However, due to a mistake made by the Board of Elections, his registration was not at the polling place. Lunde voted by affidavit ballot pursuant to Election Law § 8-302 (3) (f) (ii). He did not, however, properly complete the address portion of the affidavit, as required under that statute. Because voter Lunde did not comply with the clear mandate of the statute, his vote should not be counted.
The two other affidavit voters would have been properly registered but for mistakes by the Board of Elections. Therefore, the Supreme Court properly directed that those affidavit ballots be counted (Matter of Nicolaysen v D'Apice, supra).
The voter submitting the absentee ballot denominated respondent's exhibit C voted by circling the ballot line number next to the names of those candidates for whom he wished to vote. Because the absentee ballot was not a type required by Election Law § 7-122, this court may consider nonstandard methods of voting (see, Matter of Ladore v Mayor Bd. of Trustees of Vil. of Port Chester, 70 A.D.2d 603, 604), and in a proceeding under Election Law article 16, ascertain and effectuate the intent of the voter with respect to the identity of the candidate for whom he voted (Matter of Callahan v Morrow, 40 A.D.2d 619). Since the intent of the voter in this case is clear, the absentee ballot denominated respondents' exhibit C should be counted.
The voter who submitted the absentee ballot denominated respondents' exhibit B voted with a pencil checkmark next to certain names, but next to the name of candidate Geist the voter placed a large ink cross-out marking. The manner in which this voter marked his ballot makes his intent unclear and we cannot determine whether he wished to cast a vote for Geist or to obliterate and revoke a mistaken vote. Therefore, respondents' exhibit B should not be counted. Lazer, J.P., Thompson, Weinstein and Eiber, JJ., concur.