SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 9, 1969
IN THE MATTER OF ABRAHAM GREENWALD ET AL., APPELLANTS,
PATRICK O. BURNS ET AL., CONSTITUTING THE COMMITTEE TO FILL VACANCIES, ET AL., RESPONDENTS
In a proceeding to invalidate petitions designating respondent Burns as a candidate in the Democratic Primary Election to be held on June 17, 1969 for the public office of Councilman for the 18th Councilmanic District, Kings County, City of New York, the appeal is from an order of the Supreme Court, Kings County, entered June 9, 1969, which dismissed the petition in this proceeding, adjudged said designating petitions valid, and directed the respondent Board of Elections to print respondent Burns' name on the ballot for said election as such candidate.
Rabin, Hopkins and Benjamin, JJ., concur; Beldock, P. J., and Martuscello, J., dissent.
Order affirmed, without costs.
Beldock, P. J., and Martuscello, J., dissent and vote to reverse the order and grant the petition to invalidate the Burns designating petitions, with the following memorandum:
On this record we conclude that, as a matter of law, the claim of respondent Burns of the establishment of a bona fide residence of 261 Hicks Street, Brooklyn, New York, prior to the printing of the first set of petitions, which were circulated on April 1, 1969, is incredible and that the conclusion of the trial court to the contrary is unwarranted. The claim of an oral lease, of possession and of moving on March 29, 1969 is wholly unsupported by the proof and, in our opinion, is so incredible as to make invalid the petitions of respondent Burns (which state his place of residence as 261 Hicks Street), which petitions were circulated prior to, and in some cases signed on, April 1, 1969.
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