Monkarsh v. Kurtz

Appellate Division of the Supreme Court of New York

Monkarsh v. Kurtz

44 A.D.2d 700, 354 N.Y.S.2d 156, 1974 N.Y. App. Div. LEXIS 5249

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1974

StatusPublished

Cited by2 cases

This text of 44 A.D.2d 700 (Monkarsh v. Kurtz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Monkarsh v. Kurtz, 44 A.D.2d 700, 354 N.Y.S.2d 156, 1974 N.Y. App. Div. LEXIS 5249 (N.Y. Ct. App. 1974).

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Opinion

In a proceeding, inter alia, to compel a recanvass of ballots east in the village election in the Village of Spring Valley held on March 19, 1974 or, in the alternative, to compel certification of petitioner as having been elected as a member of the Board of Trustees of the village at said election, the appeal is from a judgment of the Supreme Court, Rockland County, dated March 29, 1974, which denied certification of petitioner as an elected trustee, adjudged the entire election to be invalid and ordered an entire new election to be conducted. Judgment reversed, on the law and the facts, without costs, and proceeding remanded to Special Term for proceedings not inconsistent herewith. At a village election in which two candidates were to be elected to serve two-year terms as trustees and one candidate was to be elected to serve a one-year term, candidate Schreiber received the largest number of votes among the candidates for the two-year positions, and petitioner and the intervenor tied for second. Candidate Rosenthal was the winner in the election for the one-year position. Candidates Schreiber and Rosenthal were never served with process in this proceeding. Consequently, Special Term was without jurisdiction to order a new election as to their candidacies. Each received the largest number of votes for the elective office he had sought and thus each must be certified as a winning candidate. Both the petitioner and the intervenor have alleged certain irregularities. We remand this proceeding to Special Term with the direction that findings of fact be made as to the effect, if any, of the alleged irregularities vis-a-vis petitioner and the intervenor only. If the alleged irregularities are found to have had a material effect on the outcome of the election, then a new election between these two candidates only must be held. If, on the other hand, the alleged irregularities are found to have had no material effect on the outcome of the election, proceedings consistent with the provisions of section 524 of the Election Law regarding the resolution of tie votes must be conducted. Latham, Acting P. J., Shapiro, Cohalan, Christ and Benjamin, JJ., concur.

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In a proceeding, inter alia, to compel a recanvass of ballots east in the village election in the Village of Spring Valley held on March 19, 1974 or, in the alternative, to compel certification of petitioner as having been elected as a member of the Board of Trustees of the village at said election, the appeal is from a judgment of the Supreme Court, Rockland County, dated March 29, 1974, which denied certification of petitioner as an elected trustee, adjudged the entire election to be invalid and ordered an entire new election to be conducted. Judgment reversed, on the law and the facts, without costs, and proceeding remanded to Special Term for proceedings not inconsistent herewith. At a village election in which two candidates were to be elected to serve two-year terms as trustees and one candidate was to be elected to serve a one-year term, candidate Schreiber received the largest number of votes among the candidates for the two-year positions, and petitioner and the intervenor tied for second. Candidate Rosenthal was the winner in the election for the one-year position. Candidates Schreiber and Rosenthal were never served with process in this proceeding. Consequently, Special Term was without jurisdiction to order a new election as to their candidacies. Each received the largest number of votes for the elective office he had sought and thus each must be certified as a winning candidate. Both the petitioner and the intervenor have alleged certain irregularities. We remand this proceeding to Special Term with the direction that findings of fact be made as to the effect, if any, of the alleged irregularities vis-a-vis petitioner and the intervenor only. If the alleged irregularities are found to have had a material effect on the outcome of the election, then a new election between these two candidates only must be held. If, on the other hand, the alleged irregularities are found to have had no material effect on the outcome of the election, proceedings consistent with the provisions of section 524 of the Election Law regarding the resolution of tie votes must be conducted. Latham, Acting P. J., Shapiro, Cohalan, Christ and Benjamin, JJ., concur.

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Bluebook (online)

44 A.D.2d 700, 354 N.Y.S.2d 156, 1974 N.Y. App. Div. LEXIS 5249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monkarsh-v-kurtz-nyappdiv-1974.

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