Matter of Kogan v. D'Angelo

427 N.E.2d 505, 54 N.Y.2d 781, 443 N.Y.S.2d 366, 1981 N.Y. LEXIS 2687

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for its consideration of the facts.

The Trial Judge, based on a stipulation that 45 of the 58 signatures obtained by a subscribing witness failed to match signatures on the buff card, struck those signatures but declined to strike the remaining 13 signatures. He made no finding that the 45 signatures were fraudulently obtained. The Appellate Division, reversing on the law alone, held that the remaining 13 signatures should have been stricken, thus reducing the total below the 4,201 signatures required and invalidating the petition.

The stipulation made did not by itself establish such gross irregularity or fraudulent practice with respect to the 45 signatures as to bring into play the permeation principle announced in the cases on which the Appellate Division relied. It was, therefore, error to invalidate the remaining 13 signatures as a matter of law.