Mahoney v. May

54 A.D.2d 801, 387 N.Y.S.2d 755, 1976 N.Y. App. Div. LEXIS 14492

Opinion

Appeal from a judgment of the Supreme Court at a Trial Term, entered October 21, 1976 in Albany County, which granted petitioner’s application, in a proceeding pursuant to section 330 of the Election Law, to declare invalid the certificate of nomination and substitution after declination nominating appellant, Daniel Patrick Moynihan, as a candidate of the Liberal Party for the public office of United States Senator and directed respondent State Board of Elections to remove Moynihan’s name as a candidate of the Liberal Party for said office from the official ballots for the general election to be held on November 2, 1976. We agree with the Trial Judge insofar as the procedural aspects of the proceeding are concerned (Election Law, § 330, subd 2; see Matter of Hulse v Millspaugh, 33 NY2d 725; Matter of Rosenshein v Millspaugh, 33 NY2d 727). We are of the view, however, that there is insufficient evidence in the record to support a finding that there was a plan or scheme of fraud or purpose to circumvent the policy of the Election Law (Matter of Farbstein v Suchman, 26 NY2d 564; Matter of McGahan v Power, 135 NYS2d 126, affd 284 App Div 848, affd 307 NY 824). Judgment reversed, on the law and the facts, and petition dismissed, without costs. Motion for stay denied, without costs, as academic. Koreman, P. J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.