23 A.D.2d 865 | N.Y. App. Div. | 1965
In two consolidated proceedings under the Election Law (§ 330) for the judicial reeanvass, review and recount- of all the absentee and military ballots cast in the last general election for the office of District Court Judge of the County of Nassau, in the Third Assembly District, Julius R. Lippman, one of the candidates for that office, appeals from a judgment of the Supreme Court, Nassau County, entered April 2, 1965 upon the court’s decision after a hearing held pursuant to this court’s remittitur dated March 8, 1965, which: (a) voided two absentee ballots; (b) directed the Nassau County Board of Canvassers to correct accordingly its canvass of the votes for that office; and (c) directed the Board of Canvassers to certify Frank X. Altimari as the duly elected candidate for said office. Judgment affirmed, without costs. An absentee soldier and his wife may vote by absentee ballot provided each of them is a qualified voter and a resident of the election district in which each casts his or her vote (N. Y. Const., art. II, § 5; Election Law, § 300; § 302, subd. 5; §§ 303, 305). For voting purposes, residence is synonymous with domicile; domicile is the voter’s permanent home; and his permanent home “ is not the place where he intends to vote but where he intends to live as a permanent abode ” (Matter of Seld [Siegfried], 268 App. Div. 235, 237; Matter of Isaacson v. Seffernan, 189 Mise. 16). Section 4 of article II of the State Constitution provides that: “For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States”. Despite this provision, an absent soldier and his wife may change their voting residences by intentionally changing their domicile; and the fact that they are absent in military service does not conclusively freeze their voting residence at their last preservice domicile until their military service has ended (Matter of Seld [Siegfried], 268 App. Div. 235, supra; Matter of Isaacson v. Seffernan, 189 Mise. 16, supra; see, also, Matter of Barry, 164 N. Y. 18; Matter of McCormack, 86 App. Div. 362; Matter of Lewis, 172 App. Div. 271). On this record, it is clear that Air Force Captain Stetson (who cast one of the challenged ballots) intentionally and unequivocally changed his domicile from Great Neck to Rowayton, Connecticut when his parents sold their Great Neck home in December, 1962 and moved to Rowayton. Thereafter, he registered his car in Connecticut, listing his parents’ home