SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 9, 1969
IN THE MATTER OF ANTHONY COSTANTINI, APPELLANT,
BOARD OF ELECTIONS OF SUFFOLK COUNTY ET AL., RESPONDENTS
In a proceeding to validate petitions designating appellant and others as candidates in the Democratic Party Primary Election to be held on June 17, 1969 for nomination for public offices in the Town of Brookhaven, the public office as to appellant being Supervisor, the appeal is from an order of the Supreme Court, Suffolk County, dated June 6, 1969, which dismissed the petition in the proceeding.
Beldock, P. J., and Rabin, J., concur; Benjamin, J., concurs. Hopkins and Martuscello, JJ., dissent and vote to reverse the order and declare the designating petitions valid.
Order affirmed, without costs.
Benjamin, J., concurs, with the following additional memorandum:
It is clear that section 136 of the Election Law does not include a town within the listed exceptions to the 5% rule. While this may result in requiring a larger number of signatures for a town than for a larger subdivision within which it is contained, this anachronism appears to be a subject for legislative correction rather than for judicial legislation.
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