Opinion
Argued October 9, 1963
Decided October 10, 1963
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HENRY TASKER, J.
Frank P. De Luca, in person, and Vincent J. Cuti for Frank P. De Luca and others, appellants.
Warren Liburt for Louis H. Buck and others, respondents.
Order affirmed, without costs. The order of offices on the voting machines as proposed is not in violation of section 105 of the Election Law. It is unnecessary for present purposes to decide whether the office of District Court Judge is a town office.
Concur: Chief Judge DESMOND and Judges DYE, FULD and FOSTER. Judges VAN VOORHIS, BURKE and SCILEPPI dissent and vote to reverse and to grant the relief contained in the prayer of the petition upon the ground that the action of the Board of Elections was erroneous and arbitrary. It violated section 105 of the Election Law which requires that the sections on the voting machines shall be in the customary order of the offices. The office of District Judge is a town office which replaced the office of Justice of the Peace (see Young's Nassau County District Court Act Annotated, 1958, Douglas F. Young; Gilbert-Bliss Civil Practice of New York Annotated, Book 19). The customary order of offices national and otherwise has always been according to the "Governmental Subdivisions" of the country and State and they are: "Country, State, County, City, Town and Village". Consequently, since it is conceded by both sides that a separate District Judge for the First District in Suffolk County is elected by the voters in each town respectively in said district, the petitioners being candidates for town offices should be placed on the ballot in the section formerly allocated to the town office Justice of the Peace.