Diamond v. Power

21 A.D.2d 660, 249 N.Y.S.2d 747, 1964 N.Y. App. Div. LEXIS 3760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1964
• Status: Published

Opinion

Order, entered May 19,1964, dismissing the petition to invalidate the designating petition of the respondent candidate, Isaac Ben Greenman, unanimously reversed on the law and the facts and, in the exercise of discretion, without costs. The motion to dismiss the petition is denied. Petitioner-appellant will be permitted to amend his petition, wane pro tunc, to include the page of the petition inadvertently omitted, and the petition will be deemed so amended, and the matter is remanded for immediate trial on the allegations of the petition as so amended. It is obvious that the omission from the petition of the page reciting that petitioner was the objector before the Board of Elections and that he is a duly enrolled voter in the party and district involved was a clerical inadvertence and irregularity. It was error to regard the absence of the page containing the allegations as jurisdictional and appropriate amendment should have been allowed. The petition was verified and was timely served. Furthermore, there is no question but that petitioner was a proper objector before the Board of Elections. Where there is timely service of a verified petition by a proper objector, there is jurisdiction to entertain a proceeding under subdivision 1 of section 330 and section 335 of the Election Law. Absent any defect in those three essentials, other omissions and irregularities should be curable by amendment, where as here, no prejudice resulted to the opposing party. It unnecessarily exalts form over substance to refuse amendment in the circumstances of this ease. The hearing on the objections should proceed forthwith. Concur — Botein, P. J., Rabin, Valente, Stevens and Steuer, JJ.