White v. McNab

• Decision Date: 21 October 1976
• Citation: 54 A.D.2d 746,387 N.Y.S.2d 692
• Parties: In the Matter of Margaret M. WHITE, Appellant, v. Everett McNAB et al., Commissioners of Election, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 692

387 N.Y.S.2d 692

54 A.D.2d 746

In the Matter of Margaret M. WHITE, Appellant, v. Everett McNAB et al., Commissioners of Election, etc., et

al., Respondents.

Supreme Court, Appellate Division, Second Department.

Oct. 21, 1976.

Nicholas Vincent Campasano, West Islip, for appellant.

Bass & Weisberg, Patchogue (John M. Armentano, Mineola, of counsel), for respondents Harenberg, Covelli, Mansius and Spies.

Before LATHAM, Acting P.J., and MARGETT, RABIN, TITONE and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In consolidated proceedings to (1) invalidate petitions designating Paul E. Harenberg as the candidate of the Independence Party in the General Election to be held on November 2, 1976 for the public office of Member of the Assembly for the 5th Assembly District, and (2) to validate the said petitions, the appeal is from a judgment of the Supreme Court, Suffolk County, dated October 13, 1976, which (1) dismissed the proceeding to invalidate the petitions, (2) granted the petition in the proceeding to validate the said petitions and (3) directed the Board of Elections to validate the petitions.

Judgment reversed, on the law, without costs or disbursements, and the petitions are invalidated. The findings of fact are affirmed.

Taken together, subdivisions 3 and 10 of section 138 of the Election Law require the invalidation of signatures on an independent nominating petition where the subscribing witness thereto had previously signed a valid designating petition of another party for the same office (Matter of Goodman v. Board of Elections of City of N.Y., 40 A.D.2d 663, 336 N.Y.S.2d 991, affd. 31 N.Y.2d 763, 338 N.Y.S.2d 439, 290 N.E.2d 439; cf. Matter of Kornfeld v. Coveney, 49 A.D.2d 955, 375 N.Y.S.2d 291). Hence, the 78 signatures here involved should have been invalidated. Furthermore, 45 signatures obtained by a subscribing witness who inserted the incorrect election district in the witness clause should also have been invalidated, which leaves the petition short of the required 1349 valid signatures (see Matter of Clune v. Hayduk, 34 N.Y.2d 965, 360 N.Y.S.2d 408, 318 N.E.2d 600; Matter of Maurin v. Allis, 28 A.D.2d 810, 281 N.Y.S.2d 697, affd. 20 N.Y.2d 671, 282 N.Y.S.2d 280, 229 N.E.2d 60). Finally, over 200 signatures on sheets with uninitialed and undated alterations in the witness statement are defective (see Matter of Marcatante v. Lundy, 8 Misc.2d 313, 167 N.Y.S.2d 965, affd. 4 A.D.2d 883, 167 N.Y.S.2d 970, revd. 3 N.Y.2d 913, 167...