Fuzak v. Mahoney

59 A.D.2d 642, 398 N.Y.S.2d 294, 1977 N.Y. App. Div. LEXIS 13505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 1977
• Status: Published

Opinion

Order unanimously reversed, without costs, and petition granted. Memorandum: Petitioners appeal from Trial Term’s decision refusing to validate petitions containing signatures supporting the nomination of delegates and alternate delegates to the Judicial Convention of the Democratic Party of the Eighth Judicial District from the 143rd Assembly District. Some of the pages invalidated contained 201 signatures obtained by subscribing witness Hall who listed himself as a registered voter residing at 48 Monticello Place. The election board held and Trial Term agreed that the pages were invalid because the subscribing witness incorrectly listed that address as his residence. Mr. Hall testified that he was displaced from his residence at 48 Monticello Place as the result of a fire in November, 1975 but returned there in January, 1977. He testified that he had always voted from that residence and that although he lived at other places after the fire, he always intended to return to 48 Monticello Place when he received the proceeds from his fire insurance and that he did in fact return to live there in January, 1977. He also testified that he informed the election board of these facts while living in temporary quarters. The evidence in the record does not support Trial Term’s determination that Hall incorrectly listed his address in the witness’ statement (see Matter of Newcomb, 192 NY 238, 250-252; Bressler v Holt-Harris, 37 AD2d 898, affd 30 NY2d 529). Inasmuch as the 201 disputed signatures collected by Hall and now accepted by us are sufficient to validate the appellants’ petitions, we do not consider the other points urged on appeal. (Appeal from order of Erie Supreme Court—Election Law.) Present—Marsh, P. J., Simons, Dillon, Denman and Witmer, JJ. (Decided Aug. 24, 1977.)