Matter of Counts v. Smith

Full title: In the Matter of GEORGE S. COUNTS, as Chairman of the State Committee of…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 21, 1956

2 A.D.2d 652 (N.Y. App. Div. 1956)

Opinion

May 21, 1956

Appeal from the Monroe Special Term.

Present — McCurn, P.J., Kimball, Wheeler, Williams and Bastow, JJ. Order entered May 18, 1956.

Order affirmed, without costs on the ground that the Special Term was without jurisdiction under section 330 of the Election Law by reason of the petitioner's failure to comply with section 145 of the Election Law. (See Matter of Taylor v. Redmond, 239 App. Div. 112; Matter of Kavesh, 247 App. Div. 175; Matter of Smith v. Board of Elections, 196 Misc. 109; Matter of McGovern v. O'Brien, 180 Misc. 515.)

All concur, except Williams and Bastow, JJ., who dissent and vote for reversal and granting the relief requested, in the following opinion by Bastow, J.:

I dissent and vote to reverse and grant the requested relief. In my opinion the petitions insofar as they attempt to designate candidates for the party position of member of the County Committee are patently invalid on the record before us. They were not in proper form as required by section 135 of the Election Law and no presumption of validity pursuant to section 103 attached to them. The petitions, insofar as they attempted to designate candidates for members of the County Committee, should have been rejected by the Commissioners of Elections when an attempt was made to file them. Therefore, it was unnecessary to file objections thereto pursuant to section 145 before the proceeding was commenced.