Richter v. Thaler

• Decision Date: 16 February 1962
• Citation: 225 N.Y.S.2d 971,11 N.Y.2d 722,181 N.E.2d 224
• Parties: , 181 N.E.2d 224 In the Matter of the Application of Loretta RICHTER et al., Respondents, v. Seymour R. THALER, as candidate for the public office of Representative in Congress, 6th Congressional District, Queens County, State of New York, etc., Appellant, and James M. Power et al., constituting the Board of Elections of the City of New York, Defendants, for an Order, etc.
• Court: New York Court of Appeals Court of Appeals

Page 971

225 N.Y.S.2d 971

11 N.Y.2d 722, 181 N.E.2d 224

In the Matter of the Application of Loretta RICHTER et al.,

Respondents,

v.

Seymour R. THALER, as candidate for the public office of

Representative in Congress, 6th Congressional District,

Queens County, State of New York, etc., Appellant, and James

M. Power et al., constituting the Board of Elections of the

City of New York, Defendants, for an Order, etc.

Court of Appeals of New York.

Feb. 16, 1962.

Appeal from Supreme Court, Appellate Division, Second Department, 225 N.Y.S.2d 191.

A proceeding was brought under Section 330 of the Election Law, Consol.Laws, c. 17 to invalidate the independent petition nominating the respondent as a candidate of the New Frontier Party for the public office of representative in Congress, 6th Congressional District.

The Supreme Court, Special Term, Queens County, Henry J. Latham, J., rendered an order denying the application and declaring the nominating petition to be valid on ground that it complied substantially with the provisions of Section 138 of the Election Law, and the petitioners appealed.

The Appellate Division reversed the order on the law, granted the application, declared the nominating petition invalid, and held that the failure to comply with Section 138 of the Election Law requiring the naming of a committee on vacancies in a nominating petition was fatal and rendered the petition a nullity. Beldock, P. J., and Christ, J., dissented.

The candidate appealed to the Court of Appeals.

Order affirmed, without costs. We read Election Law, § 138, as mandating that a nominating petition shall include a Committee to Fill Vacancies. There can be no question as to legislative intent in view of the fact that forty years ago, when committees to fill vacancies were by law permissive, the Legislature amended the statute so as to provide that independent nominating petitions 'shall' provide for such committees (L.1922, ch. 588; § 137 (now § 138, Election Law)).

DYE, FROESSEL, BURKE, FOSTER and HUNT, JJ., concur.

FULD and MacAFFER, JJ., dissent and vote to reverse upon the ground that to affirm here and to hold invalid the independent nominating petition of appellant Thaler is to permit technicality and literalness to run riot. The Legislature could never have intended such a result as this.