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MATTER SEYMOUR D. REICH v. JAMES M. POWER ET AL. (09/12/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


September 12, 1968

IN THE MATTER OF SEYMOUR D. REICH, APPELLANT,
v.
JAMES M. POWER ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF THE CITY OF NEW YORK, AND JOSEPH F. LISA, RESPONDENTS

In a proceeding pursuant to section 330 of the Election Law to direct the holding of a new Democratic party Primary Election for the office of Member of the Assembly, 31st Assembly District, Queens County, the petitioner appeals from an order of the Supreme Court, Queens County, dated July 31, 1968, which dismissed the petition for legal insufficiency.

Christ, Brennan, Munder and Martuscello, JJ., concur; Beldock, P. J., dissents and votes to affirm the order on the opinion of Special Term.

In our opinion, the original petition, as supplemented by the worksheet served by petitioner on July 8, 1968, was "sufficiently particular to give the court and parties notice of the transactions, [or] occurrences * * * intended to be proved" (CPLR 3013). Read together, they "set forth some facts which would give grounds for a belief that irregularities, discrepancies, or errors have occurred"(Matter of Cregg v. Fisselbrand, 22 A.D.2d 342, 345, affd. 15 N.Y.2d 748). Moreover, we think it indisputable that the 25-page affidavit served by petitioner on July 19, 1968 fully amplified the alleged irregularities indicated in the worksheet. Respondent conceded on the argument at Special Term that this detailed affidavit "complies in its great bulk of information with the worksheet that was originally served upon me". Under the order to show cause which commenced this proceeding, petitioner was granted leave to submit upon the return of the order and on the argument thereof additional affidavits to supplement and support the petition. In our opinion, Special Term should have considered this detailed affidavit as a proper supplement to the original petition. So supplemented, it is clearly sufficient in law.

Disposition

Order reversed, without costs, motion of respondent Lisa to dismiss the petition is denied, and the proceeding is remitted to Special Term for a hearing on the objections raised by petitioner.

19680912

© 1998 VersusLaw Inc.



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