Opinion
Argued October 5, 1970
Decided October 7, 1970
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, WALTER J. MAHONEY, J., A. FRANKLIN MAHONEY, J., JOSEPH LIFF, J.
Alvin M. Glick, Stanley G. Falk and Alfred S. Remsen, Jr. for Richard D. McCarthy, appellant.
Frederic Block for Richard L. Ottinger and others, appellants.
Binder, Mischkin, Stangler Strear for Andrew J. DiPaola and others, appellants.
L. Charles Leonard, appellant, pro se. Franklin H. Ornstein, appellant, pro se. Jack R. Muratori for John P. Lomenzo, Secretary of State, respondent.
William J. Diggin for Board of Elections of Erie County, respondent.
James P. Shea for Thomas P. Flaherty, respondent.
Eugene C. Tenney for Lynn Dane, respondent.
John Van Voorhis, Henry S. Middendorf, Jr., Serphin R. Maltese and Mason L. Hampton for other respondents.
In the first above-entitled proceeding: Order affirmed, without costs, on opinion at Appellate Division.
In each of the other proceedings: Order affirmed, without costs (see Matter of McCarthy v. Lawley, decided herewith).
Concur: Judges SCILEPPI, BREITEL, JASEN and GIBSON. Judges BURKE and BERGAN dissent in part and vote to modify by allowing a substitution of names in accordance with section 138 (subd. 4) of the Election Law. Chief Judge FULD dissents and votes to reverse in the following memorandum: Although I agree — with Judges BURKE and BERGAN — that, at the very least, a substitution of names should be allowed in accordance with section 138 (subd. 4) of the Election Law, I would go further and uphold the use of the name "Conservation" Party and validate the appellants' nominating petitions for the reasons stated in the opinion at Special Term in Matter of Ottinger v. Lomenzo. [ 64 Misc.2d 103.]