Opinion
September 16, 1977
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Simons, Dillon, Denman and Witmer, JJ. (Decided Aug. 24, 1977.)
Order unanimously affirmed, without costs. Oral motion for leave to appeal to the Court of Appeals granted. Memorandum: Petitioner filed designating petitions as candidate for the Democratic Party nomination for the position of Associate Judge of the City Court of Buffalo. Special Term upheld the board of elections' determination which invalidated the designating petitions on the ground of insufficient valid signatures. Initially we note that there is no merit to respondent Costantino's contention that this proceeding should be dismissed for petitioner's failure to join rival candidates who were not also objectors (Matter of Jones v Gallo, 37 A.D.2d 793; see also, Matter of Brayman v Stevens, 54 Misc.2d 974, affd 28 A.D.2d 1090, affd 20 N.Y.2d 868; Matter of Broderick v Aurigema, 49 A.D.2d 799). Petitioner urges that the board and Special Term improperly invalidated sheets of his petition containing approximately 100 hundred signatures subscribed by two witnesses who incorrectly listed their election districts. The provisions of subdivision 3 of section 135 of the Election Law must be strictly followed (Matter of Maurin v Allis, 28 A.D.2d 810, affd 20 N.Y.2d 671). The subscribing witness' failure correctly to state his election district requires that the signatures so witnessed be invalidated (Matter of Rutter v Coveney, 38 N.Y.2d 993; Matter of Clune v Hayduk, 34 N.Y.2d 965; Matter of Flanagan v Schwartz, 54 A.D.2d 745, affd 40 N.Y.2d 910; Matter of De Bruin v McGee, 54 A.D.2d 745, affd 40 N.Y.2d 909; Matter of Maurin v Allis, supra; Matter of Periconi v Marotta, 34 A.D.2d 1035). Petitioner also claims that 66 signatures were improperly invalidated when the board determined that the signators were not registered and enrolled in the election district of their residence. The record fails to demonstrate that those signatures are of individuals who were duly registered and enrolled voters at the time of execution. Where a petition is invalidated by the board of elections and a proceeding is instituted to reinstate the petition, the burden of proof is on the candidate to establish that the petition is valid (Matter of Bloom v Power, 21 Misc.2d 885, affd 9 A.D.2d 626, affd 6 N.Y.2d 1001; 2 Gassman, Election Law [2d ed], § 125). Petitioner has wholly failed to sustain that burden (Matter of Sims v Board of Elections of Erie County, 30 A.D.2d 766, affd 22 N.Y.2d 755; Matter of Lemishow v Previte, 51 A.D.2d 1049; Matter of Civilette v Caccamise, 42 A.D.2d 1026). Finally, petitioner's argument that he was denied due process of law is without merit.