Lyden v. Katz

14 A.D.2d 820, 221 N.Y.S.2d 452, 1961 N.Y. App. Div. LEXIS 8230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1961
• Status: Published

Opinion

We are in accord with the learned Justice at Special Term: (1) that the candidates affected were necessary parties and were properly joined; (2) that the service upon them by mail was sufficient, under all the circumstances, to give them notice of the proceedings, and was valid; and (3) that the nominating certificates on their face were defective in that the name of the particular town for which each candidate was nominated, had been omitted. We believe, however, that the motion to amend the nominating certificates nunc pro twnc should have been granted. The name of the town for which each candidate was intended to be nominated was readily ascertainable by reading the certificates together with the acceptance statements submitted by the candidates which showed the town of their residence. Moreover, on the argument before this court it was asserted by counsel without contradiction that the chairman and secretary of the Liberal party had appeared before the Justice at Special Term and were then prepared to execute any formal document amending the defects in the nominating certificates by specifically naming the towns. Under all the circumstances, it was an improvident exercise of discretion to deny the motion to amend the nominating certificates nunc pro tunc so as to effectuate the apparent intention of the party which filed them (cf. Matter of Richardson v. Taub, 266 App. Div. 920; Matter of Carusone v. Varney, 277 App. Div. 326, affd. sub nom. Matter of Barber v. Varney, 301 N. Y. 669). Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur. [29 Misc 2d 1072.]