In a proceeding pursuant to section 330 of the Election Law to declare void the primary election held June 18, 1968 and direct the holding of a new primary election for the office of Democratic party District Leader, Male, in the 22nd Assembly District, Part B, Queens County, the appeal is from a judgment of the Supreme Court, Queens County, dated August 19, 1968, which, inter alia, granted the application and directed a special election to be held on September 17, 1968. Judgment modified to provide that the special election be held October 9, 1968.
Christ, Brennan, Munder and Martuscello, JJ., concur; Beldock, P. J., dissents and votes to reverse.
No opinion. Even if it be conceded that 101 out of the total number of 2,827 votes cast were invalid, as found by Special Term, nevertheless it is my opinion that, despite the fact that the number of irregular votes exceeded the margin of victory, the alleged irregularities are not sufficient to invalidate the primary election (cf. Matter of Acevedo v. Power, 26 A.D.2d 774, affd. 18 N.Y.2d 700; Matter of Victor v. Power, 26 A.D.2d 785, affd. 18 N.Y.2d 701). As stated in Matter of Badillo v. Santangelo (15 A.D.2d 341, 342): "An election will not be overturned upon a mere mathematical possibility that the results could have been changed, when the probabilities all combine to repel any such conclusion (Matter of McGuinness v. De Sapio, 9 A.D.2d 65)". I can find no basis in the record for concluding that the results of the election would have been different but for the irregular votes and, accordingly, I am of the view that the alleged invalidity of these votes does not mandate a new election. Leave to appeal to the Court of Appeals is granted.
As so modified, judgment affirmed, without costs.
Beldock, P. J., dissents and votes to reverse the judgment and to dismiss the petition.