Praete v. Van Wart

• Decision Date: 24 August 1965
• Citation: 47 Misc.2d 898,263 N.Y.S.2d 396
• Parties: Frank C. PRAETE, Jr., Petitioner, v. William J. VAN WART and Philip J. Livaccari, as Commissioners of the Board of Elections of the County of Westchester, and Frank J. Ippolito and April Petro, Respondents, for an Order pursuant to Section 330 of the Election Law, requiring Respondents, William J. Van Wart and Philip J. Livaccari, to invalidate and declare null and void a designating petition filed in the Office of the Board of Elections for the County of Westchester on the 10th day of August, 1965, purporting to designate Frank J. Ippolito and April Petro as candidates to the public office of 'City Council.'
• Court: New York Supreme Court

Page 396

263 N.Y.S.2d 396

47 Misc.2d 898

Frank C. PRAETE, Jr., Petitioner, v. William J. VAN WART and Philip J. Livaccari, as

Commissioners of the Board of Elections of the County of

Westchester, and Frank J. Ippolito and April Petro,

Respondents, for an Order pursuant to Section 330 of the

Election Law, requiring Respondents, William J. Van Wart and

Philip J. Livaccari, to invalidate and declare null and void

a designating petition filed in the Office of the Board of

Elections for the County of Westchester on the 10th day of

August, 1965, purporting to designate Frank J. Ippolito and

April Petro as candidates to the public office of 'City Council.'

Supreme Court, Westchester County.

Aug. 24, 1965.

Levine & Altman, New Rochelle, for petitioner.

Martin J. Burgess, Jr., New York City, for respondents.

Gordon Miller, County Atty., White Plains, for Bd. of Elections.

JOSEPH F. GAGLIARDI, Justice.

This is a proceeding under § 330, subdivision 1, of the Election Law. The applicant has filed abjections to the petition designating respondents Ippolito and Petro as Conservative Party candidates for the office of 'City Council.' The petition recites their place of residence as addresses in New Rochelle, New York, and lists New Rochelle addresses for the subscribers and witness. The applicant has brought this proceeding to direct the Board of Elections to declare the petition null and void with respect to the election for the public office of 'Councilman, City of New Rochelle, New York.' The occupants of this office are elected at large and not from specific wards or districts.

The standing of this applicant (petitioner) to file objections to the petition with the Board of Elections is not contradicted by Matter of Dimentstein [Frankle], 184 Misc. 126, 50 N.Y.S.2d 448, affd. 255 App.Div. 722, 6 N.Y.S.2d 750, and is supported by Matter of McKeever v. Hornidge, 205 Misc. 362, 129 N.Y.S.2d 820, affd. In re Hornidge, 283 App.Div. 805, 129 N.Y.S.2d 498, affd. 306 N.Y. 876, 119 N.E.2d 45. See, Matter of Fleishman v. Board of Elections, 31 Misc.2d 326, 327, 219 N.Y.S.2d 839, 841-842.

The substantive issue presented in this proceeding is whether the petition is fatally defective for failure to describe the public office as 'Councilman, City of New Rochelle, New York' as opposed to the way the petition states 'City Council' without even specifying the city involved. A reader of the petition would have to infer from the New Rochelle addresses of the candidates, signatories and witness that the petition advocates candidacy for the legislative body of the City of New Rochelle. Moreover, the committee on vacancies sets forth the names of three persons who do not reside in New Rochelle.

This petition falls between the petitions in Matter of Lyden v. Katz, 29 Misc.2d 1072, 221 N.Y.S.2d 445, mod. 14 A.D.2d 820, 221 N.Y.S.2d 452, rev'd. 10 N.Y.2d 891, 223...