Opinion
September 11, 1975
Appeal from the Erie Special Term.
Present — Marsh, P.J., Moule, Mahoney, Goldman and Witmer, JJ. (Order entered August 27, 1975.)
Order unanimously affirmed, without costs. Memorandum: Although 17 of the 57 notaries public or commissioners of deeds who obtained signatures did not administer formal oaths, the record shows that the subscribers were fully informed of the purpose of the petition, and it reveals no evidence of fraud. Special Term correctly held that the designating petition substantially complied with section 135 of the Election Law and was valid (Matter of Rosen v McNab, 25 N.Y.2d 798, 799; Matter of Locascio v Feuer, 45 A.D.2d 937, affd 34 N.Y.2d 976). Moreover, these 17 officers obtained approximately 1,136 of the total 4,131 signatures on the petition. The burden of proving the remaining 2,995 signatures invalid rests on the party attacking the validity of the designating petition (Matter of Civilette v Caccamise, 42 A.D.2d 1026, affd 33 N.Y.2d 730). Therefore, assuming that the 535 signatures eventually found invalid by the Board of Elections were all included within these 2,995 remaining signatures, it is clear that at least 2,460 signatures, more than the 2,000 needed to designate, are presumptively valid (Matter of Clum v Holmes, 194 Misc. 863).