Argued January 4, 1965
Decided January 7, 1965
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, THEODORE VELSOR, J.
James J. Leff, Harold L. Fisher, Bertram Harnett and Louis H. Powell for Julius R. Lippman.
Stephen J. Masse and Lewis Abrahams for Frank X. Altimari.
No appearance for Board of Elections of County of Nassau and others, respondents.
Order modified, without costs, and matter remitted to Special Term for further proceedings in accordance with the following memorandum: We agree with the Appellate Division as to the disposition of ballot No. 32-1. We disagree with the Appellate Division as to ballots Nos. 14-2, 36-1 and 118-3, and we hold those numbered ballots to be valid. We disagree with the Appellate Division as to ballot No. 92-1 and hold that ballot invalid. Up to this point there would be a majority of two votes for candidate Altimari. Ballots Nos. 33-1, 33-2 and 33-3 were not opened or considered prior to the receipt of the ballots by us but we have now opened those numbered ballots to see whether the voters had voted for this office. Two of them did so vote. We hold that the grounds on which the Election Inspectors refused to open these ballots were insufficient (N.Y. Const., art. II, § 4; Election Law, § 151). In view of the limitation of our jurisdiction, however, we remit the proceeding to Special Term to pass in the first instance on the validity of the two ballots numbered 33-1 and 33-2.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.