Opinion
October 31, 1961
In two proceedings under section 330 of the Election Law, consolidated and heard together, to invalidate five certificates of the Liberal party nominating its candidates for town offices in Putnam County to be filled at the next general election, Smith and Manson, the Liberal party's County Committee in Putnam County, and William J. Millar and other candidates affected, appeal from an order of the Supreme Court, Putnam County, dated October 24, 1961 and entered October 25, 1961, which, inter alia: (a) granted the petitions to invalidate said nominating certificates; (b) directed the Putnam County Board of Elections to declare the said nominating certificates to be null and void; (c) restrained the board from taking any further action upon said nominating certificates and from placing on the ballot as candidates of the Liberal party the names of the candidates thus nominated; (d) denied the motion of the appellants, Smith and Manson, to cure the defects in the said nominating certificates by permitting their amendment nunc pro tunc; and (e) denied the cross motion of the said candidates affected, William J. Millar and others, to set aside the service upon them of the orders initiating these proceedings. Order modified on the law and the facts as follows: (1) by striking out the provisions enumerated a, b, c and d above; (2) by substituting therefor a provision granting the motion to cure the defects in the said nominating certificates by permitting their amendment nunc pro tunc so as to set forth specifically the name of the town for which each candidate has been nominated; and (3) by substituting therefor another provision denying the petitions to invalidate such nominating certificates; declaring said nominating certificates, as thus amended, to be valid; and directing the Board of Elections of Putnam County to accept said nominating certificates, as thus amended, and to place on the ballot as the candidates of the Liberal party the names of the candidates thus nominated. As so modified, the order is affirmed, without costs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. We are in accord with the learned Justice at Special Term: (1) that the candidates affected were necessary parties and were properly joined; (2) that the service upon them by mail was sufficient, under all the circumstances, to give them notice of the proceedings, and was valid; and (3) that the nominating certificates on their face were defective in that the name of the particular town for which each candidate was nominated, had been omitted. We believe, however, that the motion to amend the nominating certificates nunc pro tunc should have been granted. The name of the town for which each candidate was intended to be nominated was readily ascertainable by reading the certificates together with the acceptance statements submitted by the candidates which showed the town of their residence. Moreover, on the argument before this court it was asserted by counsel without contradiction that the chairman and secretary of the Liberal party had appeared before the Justice at Special Term and were then prepared to execute any formal document amending the defects in the nominating certificates by specifically naming the towns. Under all the circumstances, it was an improvident exercise of discretion to deny the motion to amend the nominating certificates nunc pro tunc so as to effectuate the apparent intention of the party which filed them (cf. Matter of Richardson v. Taub, 266 App. Div. 920; Matter of Carusone v. Varney, 277 App. Div. 326, affd. sub nom. Matter of Barber v. Varney, 301 N.Y. 669). Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur. [ 29 Misc.2d 1072.]