In re Baldwin

242 A.D. 727 | N.Y. App. Div. | 1934

Order reversed on the law and the facts, without costs, and motion granted. The weight of evidence establishes that the petition was altered by the erasure of the name of a designee — Honour B. Gelson — after numerous electors had signed the petition arid before filing. The court, therefore, is unable to say that these signatures would have been obtained if the name of such designee had been erased before said electors had signed the petition. Such being the circumstances the majority of the court is of the opinion that the entire petition is invalid. Young, Kapper and Tompkins, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm, with the following memorandum: Assuming that the designating petition was altered by the erasure of the name of Honour B. Gelson after it had been signed by the voters and before filing, as contended by the appellant, there is no claim that the alteration was the result of a conspiracy, and it is conceded that the alteration was made solely on the initiative of an unauthorized individual. On those facts we are of opinion that the petitioning voters have legally placed in nomination the various candidates for party place appearing on the petition originally, including Honour B. Gelson. Miss Gelson, however, makes no assertion of her rights here. The wrongful erasure of her name, however, under the facts disclosed, does not affect the validity of the other nominations.