Mirrington v. VanDeMark
| Decision Date | 18 August 1966 |
| Citation | 51 Misc.2d 305,273 N.Y.S.2d 94 |
| Parties | Application of Ernest W. MIRRINGTON, Jr., Petitioner, v. Allan W. VANDeMARK and M. Joseph Gormley, Commissioners constituting the Board of Elections of Niagara County, New York, Respondents. Application of Gregory J. POPE, Petitioner, v. Allan W. VANDeMARK and M. Joseph Gormley, Commissioners constituting the Board of Elections of Niagara County, New York, Respondents. |
| Court | New York Supreme Court |
These proceedings were heard together, but not consolidated.
Petitioner Mirrington seeks an order certifying him as the nominated candidate of the Conservative Party for 'Member of Assembly of the 137th Assembly District,' and placing his name on the ballot as such candidate in the General Election, November, 1966; respondents counter-move to invalidate Mirrington's nominating petition.
Prior to May 27, 1966, Mirrington mailed his petition to respondents, who received it the next day, for the Primary Election, June 28, 1966. No objections were filed against this petition and no other candidate filed a petition for such office.
Mirrington's name did not appear upon the ballot for the June Primary because his nomination was uncontested.
On July 14, 1966, Mirrington was notified by respondents that his petition was rejected because of insufficient signatures.
The Mirrington nominating petition contained 10 names; five signatures were needed for its validity.
On July 13, 1966, six persons whose signatures appeared on the Mirrington petition denied, in affidavits, that they signed it; one of them added that she told the 'witness' to the signatures 'on the phone' to sign her name for her; another person added that he gave the 'witness' permission to sign his name to it. This 'witness' stated at the foot of the Mirrington petition, Inter alia, that 'I know each of the voters whose names are subscribed to this petition containing 10 (fill in number) signatures and each of them subscribed the same in my presence and upon so subscribing declared to me that the foregoing statement, made and subscribed by him, was true.'
Petitioner Pope seeks similar relief as Mirrington, certifying him as nominated by the Conservative Party for Member of Assembly of the '138th Assembly District,' respondents counter-move to invalidate his petition, also.
The facts in the Pope application are similar to Mirrington's, except the Pope petition had 11 names; four signatures were needed to be valid.
Five persons whose signatures appeared on the Pope petition denied in affidavits that they signed it. A lawyer executed an affidavit stating that two alleged signatories told him that they did not sign the Pope petition, but they refused to sign affidavits of denial.
In a representative form of government, it is essential that the courts protect a citizen's right to vote and his correlative right to be a candidate for public office. (See: Schwartz v. Heffernan, 304 N.Y. 474, 482, 109 N.E.2d 68, 70.)
The Supreme Court may summarily determine any question of law or fact arising under Election Law, Section 330. Such question related to the nomination of any candidate may arise in a proceeding instituted by one of three persons, viz.: (1) 'any candidate aggrieved,' or (2) 'the chairman of any committee as defined in section two,' or (3) 'a person who shall have filed objections pursuant to section one hundred forty-five'. (Ibid., Subd. 2.) No other person may institute such a proceeding and the court lacks jurisdiction to hear it. (See: Matter of Taylor v. Redmond, 239 App.Div. 112, 267 N.Y.S. 694; Matter of Counts v. Smith, 1 N.Y.2d 809, 810, 153 N.Y.S.2d 70, 135 N.E.2d 601, 602; Matter of Lewis v. Murray, 10 Misc.2d 1009, 1011, 171 N.Y.S.2d 473, 475.)
All questions of fact, such as forgery or fraud, not appearing on the face of a petition are to be determined in court proceedings only. (Matter of McGovern (Olson), 291 N.Y. 104, 108, 51 N.E.2d 666, 667; Schwartz v. Heffernan, 304 N.Y. 474, 480, 109 N.E.2d 68, 69; Matter of Bednarsh v. Cohen, 267 App.Div. 133, 135, 45 N.Y.S.2d 1, 3, leave to appeal denied, 292 N.Y. 578, 54 N.E.2d 693 and 723, 53 N.E.2d 850; Matter of Frankel v. Cheshire, 212 App.Div. 664, 667, 671, 208 N.Y.S. 721, 724, 727.)
Election Law, Section 149, entitled, 'Uncontested primaries,' provides: 'All persons designated for uncontested offices or positions at a primary election shall be deemed nominated or elected thereto, as the case may be, without balloting.' (L.1959, c. 684, sec. 10.) This section dispenses with the primary for an uncontested office, but before a candidate is deemed nominated, his petition shall be sufficient. (See: Hooper v. Power, 17 A.D.2d 816, 817, #16, 233 N.Y.S.2d 392, 394, aff'd 12 N.Y.2d 764, 234 N.Y.S.2d 716, 186 N.E.2d 565.) The burden is on the objectant to prove invalidity of signatures. (Matter of Ecker v. Cohen, 239...
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Verity v. Cristenfeld
... ... See Lerner v. Power, 1 N.Y.2d 912, 154 N.Y.S.2d 968, 136 N.E.2d 912 (1956); Carson v. Lomenzo, Supra; Mirrington v. Vandemark, 51 Misc.2d 305, 274 N.Y.S.2d 94 (Sup.Ct.1966) ... The only substantive issue in the proceeding at this point is the ... ...