Marcatante v. Lundy
| Decision Date | 05 November 1957 |
| Citation | 167 N.Y.S.2d 965,8 Misc.2d 313 |
| Parties | In the Matter of the Objections of Clara MARCATANTE, Angelina Lazio, Martha O'Neil, Marjorie K. Rapp, Mary Dondero, Henrietta Deneen, Anne Pineman and Alice Moser, Petitioners, v. James A. LUNDY, Jenkin R. Hockert, Corning G. McKennee (purporedly substituted for Henry J. Latham), candidates of the United Tax Payers Party for the public offices of President of the Borough of Queens, Justice of the City Court of the City of New York, and 'County Court, Queens County', respectively, and John Devine, Charles C. Quirk, Jr., Freda Herschler and Vito Incantolupo constituting the Committee to Fill Vacancies named in the petition of the United Tax Payers Party purporting to nominate the said candidates, and James M. Power, Thomas J. Curran, Dennis J. Mahon and John R. Crews, constituting the Board of Elections of the City of New York, Respondents, for a Determination of the Court as to the validity of the petition purporting to name said James A. Lundy, Jenkin R. Hockert and Corning G. McKennee (purportedly substituted for Henry J. Latham) as candidates of the United Tax Payers Party for the respective offices set forth above to be voted for at the General Election to be held on |
| Court | New York Supreme Court |
Murray Stockman, Forest Hills, for petitioners, Charles Margett, Jamaica, J. Wolfe Chassen and Benjamin Rosenthal, Brooklyn, of counsel.
Bernard Tompkins, New York City, and Allen Beldock, Brooklyn, for respondents.
Peter Campbell Brown, Corp. Counsel of the City of New York, New York City, for Board of Elections, Thomas W. A. Crowe, Asst. Corp. Counsel, New York City, of counsel.
Oral decision announced immediately upon the conclusion of the hearing.
This was a long and arduous hearing on objections to the independent nominating petition of the United Tax Payers Party. I would be remiss if I did not take this opportunity of complimenting the distinguished attorneys for the respective parties who have appeared in this matter, not only for submitting to the Court excellent memoranda on the law but also at great personal sacrifice, spending many, many hours, night and day, in the courthouse and outside of this courthouse, in a sincere effort to reach an area of agreement with respect to the issues here presented.
The nominating petition consists of 647 sheets containing 10,218 signatures. Of these, the Court has found, either by agreement between the parties or by the Court's determination, that 4,388 are invalid. These invalid signatures are divided into the following classifications: 2,927 represent signatures invalid because the signers had not registered in the year 1956. This number was arrived at through the cooperation of counsel for the respective parties, who, after exhaustive investigation of the records, agreed upon that figure; 258 signatures represent subscribing witnesses who were not registered; 661 represent subscribing witnesses who gave wrong E.D.'s or A.D.'s in the petition; 142 represent a wrong total of signatures contained in the subscribing witnesses' statement; 135 represent similar handwriting; 95 represent signers' dates post-dating the date of the subscribing witness on the petition; and 170 represent miscellaneous defects.
I believe that the foregoing classifications total the 4,388 signatures which this Court declared invalid. This leaves a total of 5,830 signatures which this Court finds and declares to be valid signatures, and in sufficient numbers to constitute the petition of the United Tax Payers Party a good and valid petition.
In the course of the hearings, while holding certain signatures to be invalid for the various reasons above enumerated, the Court held as valid, over the objections of counsel for objectors-petitioners a total of 2,361 signatures which they claim were invalid because of alterations in the statements of the subscribing witnesses other than alterations covering the election district and assembly district, and street addresses of the subscribing witnesses as of the date of the execution of the petition, which last items appear on lines 2 and 3 of the 'Statement of Witness.' In the course of the hearing, the objectors-petitioners referred to these alternations as having been made after the execution of the petitions, and in some cases pointed out to the Court that there were no initials or any other notations alongside of the changes. The Court finds that there were no initials alongside of any of the changes or alterations which were objected to.
The objectors-petitioners relied on Warsoff v. Cohen, 289 N.Y. 108, 44 N.E.2d 386, wherein the Court of Appeals held that the Board of Elections was justified in its ruling that in the absence of explanation, erasures or alterations, not initialed on the face of the petition, invalidated the signatures affected. The distinction between the Warsoff case and the case at bar may be found in the well reasoned opinion of the late Mr. Justice Deyo in Kerns v. Whiting, 187 Misc. 656, 65 N.Y.S.2d 287. There, as here, the Commissioners of the Board of Elections did not reject the nominating petition and the Court held that the burden of proof remained with the party who objected to the validity of the petition and sought judicial review. This Court is of the opinion that the...
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