Dietrich v. Northrup

82 Misc. 2d 941, 372 N.Y.S.2d 13, 1975 N.Y. Misc. LEXIS 2852

• Court: New York Supreme Court
• Decided: August 14, 1975
• Status: Published

Opinion

James H. Boomer, J.

The Court of Appeals has said: "A petition which names a committee on vacancies is not rendered invalid because of the disqualification of one of the members (Matter of Brennan v Power, 307 NY 818). It is a fatal defect if no committee on vacancies is named (Matter of Richter v Thaler, 11 NY2d 722).” Matter of Collins v Meisser, 22 NY2d 779-780.) Still unanswered is the question posed here: whether the petition is invalid if it lists only two (rather than the required minimum of three) names as members of the committee.

It may logically be argued that there is no substantial difference between the Brennan case (supra), where one of the three members was disqualified and this case where only two members were named.

We are given no key to the basis for the Court of Appeals decision in the Brennan case (supra). Presumably the court held that there was a substantial compliance with the statute when three members were named and one was later found to be unqualified. In that case at least an attempt was made to comply with the statute (Election Law, § 135, subd 2). Here, where there was no attempt to comply with the requirement that the petition contain the names "of at least three persons” (emphasis supplied) as a committee to fill vacancies, I hold that the petition was invalid.