Cook v. Zelazny

49 A.D.2d 1036, 374 N.Y.S.2d 509, 1975 N.Y. App. Div. LEXIS 11401

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1975
• Status: Published

Opinion

Order unanimously reversed, without costs, in accordance with the following memorandum: Appellants are candidates for the Liberty Party nomination for the respective offices of Supervisor, Councilman and Superintendent of Highways in the Town of Shelby, Orleans County. In a proceeding commenced in Supreme Court pursuant to section 330 of the Election Law, the court determined that the failure to state the name of the town was a jurisdictional impediment which constituted a fatal defect and declared their independent nominating petition invalid and restrained the Board of Elections of Orleans County from placing appellants’ names as candidates of the Liberty Party on the ballots for the general election to be held on November 4, 1975. There is no claim of fraud, deception or confusion because of the omission of the name of the town; and the petition, read as a whole, clearly shows that the political subdivision involved was the Town of Shelby (Matter of Murray v Coveney, 39 AD2d 932; Matter of Johnson v Westfall, 208 Misc 360, affd 286 App Div 966; Matter of Praete v Van Wart, 47 Misc 2d 898; Matter of Whiting v Taub, 187 Misc 660). There has been substantial compliance with the Election Law and the board of elections is directed to place the names of the candidates of the Liberty Party on the ballots for the general election to be held on November 4, 1975. (Appeal from order of Supreme Court, Orleans County, in proceeding to invalidate nominating petition.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Witmer, JJ. (Order entered October 29, 1975.)