Brackley v. Donohue

2 A.D.2d 868, 156 N.Y.S.2d 133, 1956 N.Y. App. Div. LEXIS 4159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1956
• Status: Published

Opinion

Appeal by petitioner from so much of an order of Supreme Court, Special Term, Albany County, which denied application made in pursuance of section 330 of the Election Law for an order directing the Albany County Board of Elections to reject a certificate of nomination. Petitioner is the nominee of the Republican party for the office of alderman in the third ward, city of Cohoes. A vacancy in this office occurred August 14, 1956 and is to be filled at the general election of this year. On September 13, 1956 Bernadette Piche was nominated by the appropriate Democratic committee of the ward; and the certificate of nomination was delivered on September 14 to the office of the Democratic County Committee for checking and for filing. The last day for filing nominations under the 1956 statute was September 14. (Election Law, § 314, subd. 8.) This was a Friday. The certificate was filed in the Board of Elections the following Monday, September 17. There is a showing of facts indicating that the failure to file until that date was inadvertent and due to some misapprehension on the part of the person who was responsible for filing it as to the statutory time limit. (Cf. § 143, subd. 5.) Upon the record the court at Special Term had jurisdiction to exercise a discretion not to require the Board of Elections to reject the certificate. (Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Kagan v. Katz, 275 App. Div. 1065; Matter of Smith v. Board of Trustees, 1 A D 2d 908.) The facts in the record warrant this exercise of discretion. Order unanimously affirmed, without costs. Present—-Foster, P. J., Bergan, Coon, Zeller and Gibson, JJ.