Weisberger v. Cohen

260 A.D. 392, 22 N.Y.S.2d 835, 1940 N.Y. App. Div. LEXIS 4604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1940
• Status: Published

Opinions

Per Curiam.

In this case the board of elections has found that out of the total of 1,413 names appearing upon the petition, 315 were irregular for various reasons. The court below found that there were forgeries appearing upon the sheets authenticated by the witnesses Rofrano and Williams, and by the petitioner Weisberger. Rofrano had authenticated 113 signatures, Williams 20 signatures, and Weisberger, the candidate, 123 signatures. The candidate called no witnesses and submitted no proof.

We thus have a petition in which over twenty per cent of the signatures are concededly irregular and where the sheets authenticated by the candidate himself and two other witnesses contain forgeries and false affidavits by these witnesses. In the absence of some proof that the remaining signatures on the petition were in fact valid, the petition should be rejected. This is not a case where the misguided enthusiasm of a solicitor has resulted in some irregularities. It is shown that the candidate himself actively participated in the fraud and should not be allowed to benefit ■¿hereby, especially in the absence of some explanation.

The order appealed from should be affirmed.

Martin, P. J., O’Malley, Townley and Glennon, JJ., concur; Untermyer, J., dissents and votes to reverse and grant the motion.