Opinion
September 16, 1977
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Simons, Dillon, Denman and Witmer. (Decided Aug. 24, 1977.)
Order unanimously affirmed, without costs. Motion for leave to appeal to the Court of Appeals granted. Memorandum: This is a proceeding to validate petitions designating petitioner Sortino as a candidate in the forthcoming Conservative Party's primary election for nomination to the office of Town Justice of the Town of Irondequoit. Petitioner appeals from the dismissal of his petition for an order validating his designating petitions filed with the respondent Monroe County Board of Elections or, in the alternative, for an order nunc pro tunc directing each notary public who authenticated a designating petition for petitioner Sortino to place the date of that authentication on the respective designating petitions with the same force and effect as though dated at the time of filing the petition with the respondent board of elections. For the reasons stated in Matter of Weiss v Mahoney ( 49 A.D.2d 796), Special Term correctly held that the failure on the part of the petitioner's notaries to date their jurats of authentication placed on his designating petitions was fatal to the validity of those petitions. (Election Law, § 135, subd 2; see, also, Matter of Byrnes v Board of Elections, 134 N.Y.S.2d 257, affd 284 App. Div. 847, affd 307 N.Y. 816. ) Nor is this defect properly curable by an order nunc pro tunc. As was said in Matter of Whiting v Taub ( 187 Misc. 660, 661, 662): "no such order should be granted where the information does not appear on the face of the petition." (See, also, Matter of Lyden v Katz, 29 Misc.2d 1072, 1077, revd 14 A.D.2d 820, revd and order at Special Term reinstated for reasons stated at Special Term, 10 N.Y.2d 891.) The affidavits of the notaries accompanying the petition were not properly cognizable by Special Term. To be effective, these affidavits should have been filed with the respondent board on or before the last day provided by law for filing a designating petition. (Matter of Orange v Cohen, 268 N.Y. 481, 483; Matter of Lyden v Sullivan, 269 App. Div. 942, 943; see, also, Matter of Phillips [Hubbard], 284 N.Y. 152, 161.)