Opinion
November 1, 1955.
Appeal from Supreme Court, Rensselaer County.
In the first proceeding respondent-petitioner sought to invalidate the independent nominating petition of appellant. In the article 78 proceeding appellant sought an order in the nature of mandamus commanding the Rensselaer County Board of Elections to accept appellant's nominating petition and to place his name upon the ballot. The trial court granted the petition which sought to invalidate the nominating petition of appellant and denied the latter's petition for an order in the nature of mandamus. The respondent Brown was named the Republican candidate for Mayor of the City of Troy after a primary contest with the appellant Fitzgerald. Thereafter and on September 26, 1955, the appellant Fitzgerald filed with the Rensselaer County Board of Elections an independent nominating petition containing 2,060 signatures. On September 29th, the respondent Brown filed objections to this independent nominating petition. The Board of Elections of Rensselaer County reached no decision as to whether the petition should be filed. The proceeding of respondent-petitioner to invalidate the nominating petition filed on behalf of Fitzgerald was instituted on October 7th, by an order to show cause returnable at the Trial Term then in session in Rensselaer County. On October 8th appellant served the Board of Elections of Rensselaer County with an order to show cause why an order in the nature of mandamus should not be granted to compel the Board of Elections to accept his petition. The latter proceeding was made returnable at Special Term for Albany County and was later transferred to the Trial Term for Rensselaer County. The trial of the proceeding under section 330 of the Election Law began October 17th and the article 78 proceeding was held in abeyance until the determination thereof. On October 26th the trial court made its decision in both matters and the orders appealed from were entered. Appellant asserts there is but one issue on appeal, i.e., that he was deprived of a fair trial because after objections were filed to his nominating petition no specifications were thereafter filed within six days as generally required by section 145 of the Election Law. We do not find, however, that appellant made any clear-cut objection to the jurisdiction of the court on this basis, until the hearings were well under way and a great deal of testimony had been taken. While the statute would ordinarily appear to require something by way of specifications, nevertheless we think that in this particular case, in view of all the circumstances and the summary nature of the proceeding, that a failure on that ground cannot now serve as a basis for a dismissal of the proceeding. We are confirmed in this view because appellant has failed to indicate satisfactorily in any respect where the Special Term was in error striking out individual names from the nominating petition. While appellant refused to rest his appeal entirely upon the ground that he had been denied a fair trial nevertheless he also failed to assist this court in any way in passing upon the merits of the Special Term's decision as to various signatures which were declared invalid. The Special Term found that 753 signatures in all on the nominating petition were invalid. This brought the number of valid signatures down to a total of 1,307. The minimum number of signatures required under the statute for the independent nomination of appellant was 1,500, and hence the Special Term held that the petition was short of 193 valid signatures. From our necessarily hasty and imperfect examination of the record unaided by the assistance of counsel for the appellant we are unable to find any instance where the Special Term was in error. As to the article 78 proceeding there is considerable doubt as to whether or not in a case such as this an order in the nature of mandamus against the election board should issue, but in any event, on this appeal we find that the proceeding was not properly instituted by service upon necessary parties. Orders affirmed, without costs. Leave to appeal to the Court of Appeals granted, and this court certifies that in its opinion questions of law are involved that ought to be reviewed by the Court of Appeals. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.