Opinion
November 1, 1955.
Appeal from Chenango County Court.
The right of each applicant to registration was challenged upon the ground that neither was a resident of the town of Lincklaen and each applicant thereupon executed a challenge affidavit. Their answers apparently did not satisfy a majority of the inspectors who refused them registration (Election Law, § 171, subd. 3). Applicants then instituted a proceeding to compel the inspectors to add their names to the register of voters. Upon the return of the show cause order, the inspectors appeared personally before the County Court. Through one of their number, they orally told the court their reason for refusing registration to applicants, namely, that they believed them not to be residents of the town of Lincklaen. No witness was sworn nor was any stenographic record made but thereafter an order was signed adjudging applicants to be residents of the town of Lincklaen and directing their registration. It seems to us that an issue of fact exists which should be determined only after hearing proof (Election Law, § 335) and hearing proof contemplates the swearing of witnesses and the recording of their testimony. The unsworn and stenographically unrecorded statements by one of the inspectors made upon the return of the show cause order was not proof but only a statement of position taken by the inspectors. Although we express no opinion on the merits of the controversy, it may be that the established residence of applicants is the town of Lincklaen at least up to April, 1955; and applicants' method of living from then to the date they sought registration may support a finding that they have not changed their residence, but no determination should be reached without a full and adequate hearing. Order directing registration of applicants reversed, without costs, and matter remitted for a hearing and determination. Appeals from orders denying reargument or rehearing dismissed, without costs. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur. [See post, p. 1116.]