Opinion
Argued April 27, 1977
Decided April 28, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MARTIN RODELL, J.
Paul H. Janis and James R. Sandner for appellant.
Lawrence A. Mandelker for John R. Toto, respondent.
Order affirmed, without costs, on the memorandum at the Appellate Division.
Concur: Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and COOKE. Judges JASEN and FUCHSBERG dissent and vote to reverse and remit the matter to the Appellate Division for review of the facts in the following memorandum: The objectors were properly before the court (Matter of Lamula v Power, 13 N.Y.2d 873). Citizen-objector Joan Reed was the co-objectant in the petition filed by objector respondent John Toto. Their joint petition to invalidate the appellant's nominating petition was heard at the same time as appellant's petition to validate. In the present proceeding the same attorney who had represented the two objectors on the petition to invalidate appeared for Toto. Clearly Reed's position, as a practical matter, was fully reflected by Toto with whom she had been joined in interest. These circumstances are different from those in Matter of Butler v Hayduk ( 37 N.Y.2d 497), where there was only one citizen-objector and where, since only the board of elections was served, the citizen-objector interest was totally unrepresented. In contrast, Reed's co-objector was served, appeared at the hearing and argued the merits of their mutual objections. There is no question that all of the objections contained in the joint petition were adequately raised and briefed and considered on the merits. Under these circumstances, the failure to serve one of the two joint objectors was a mere irregularity.