SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 6, 1968
IN THE MATTER OF EDWARD J. WEBER, JR., RESPONDENT,
JAMES M. POWER ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF THE CITY OF NEW YORK, ET AL., RESPONDENTS, AND JOHN J. SANTUCCI, APPELLANT
In a proceeding to validate a designating petition filed by petitioner on May 14, 1968 for the office of State Senator, 11th Senatorial District, Queens County, and to direct petitioner's name to be placed on the official primary ballot for the Democratic party, the appeal is from a judgment of the Supreme Court, Queens County, dated June 4, 1968, which granted the application.
Christ, Acting P. J., Brennan and Hopkins, JJ., concur; Benjamin and Martuscello, JJ., dissent and vote to reverse.
Judgment affirmed, without costs.
Benjamin and Martuscello, JJ., dissent and vote to reverse the judgment, deny the application, and dismiss the petition, with the following memorandum:
The question at issue is whether petitioner was an enrolled member of the Democratic party at the time of the filing of the designating petition on May 14, 1968 (Election Law, § 137, subd. 1). Special Term held that he was. We disagree. Prior to January, 1967 petitioner resided at an address on Beach 131st Street in the 75th Election District of the 19th Assembly District, and in the 11th Senatorial District. It is conceded that he was an enrolled Democrat while residing at that address. After January, 1967 petitioner moved to an address on Beach 127th Street in the 73rd Election District of the said Assembly and Senatorial Districts. On March 28, 1968 petitioner reregistered for his new address, but did not request or receive a transfer of his prior enrollment; instead, he signed a new enrollment form. Although he testified that he reenrolled as a Democrat residing at that address, his enrollment blank cannot be opened until after the 1968 general election (Election Law, § 186). His Democratic party enrollment for the old address was cancelled by the Board of Elections on May 31, 1968. In our opinion, petitioner's reregistration for the new address on March 28, 1968 and his enrollment in a party, which cannot presently be verified from Board of Elections records, coupled with the cancellation of his prior enrollment on May 31, 1968, disqualify him as a duly enrolled member of the Democratic party on May 14, 1968.
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