Opinion
May 27, 1960
Appeal from the Erie Special Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Order unanimously affirmed, without costs of this appeal to either party. Memorandum: We find a sufficient number of irregularities that invalidated the signatures to reduce the number of valid signatures below the minimum required by law. While the record shows disregard of the statutory requirements, there is no evidence upon which to base a finding of fraud. However, Special Term made no such finding despite the statements on the subject in its decision. Certain general language in the opinion might lead one to conclude that appellant had "actively aided and participated in the presentation of a forged petition" but again the court below made no such finding or conclusion. (Cf. Matter of Cole v. Winfield, 201 Misc. 1049, 1052, affd. 280 App. Div. 883; Matter of Lefkowitz v. Cohen, 262 App. Div. 452, affd. 286 N.Y. 499.) It appears that appellant out of an abundance of caution checked and rechecked the designating petitions and made certain changes therein. Among other things, in various instances, the appellant changed the date that the petition had been signed or inserted therein the ward and district or town in which the signer of the petition resided. This, having been done after execution by the enrolled voter and witness, of course, invalidated the signature, but there is no evidence of intentional wrongdoing on the part of appellant. Application for leave to appeal to the Court of Appeals denied.