SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
October 30, 1969
IN THE MATTER OF FRANCOIS R. CROSS, APPELLANT,
ALBERT HECHT ET AL., AS COMMISSIONERS OF ELECTIONS OF THE COUNTY OF DUTCHESS, RESPONDENTS
In a proceeding to validate petitions nominating appellant a candidate of the Fishkill Independent Party for the public office of Town Justice in the Town of Fishkill in the election to be held on November 4, 1969, the appeal is from a judgment of the County Court, Dutchess County, dated October 2, 1969, which dismissed the petition.
Brennan, Acting P. J., Rabin, Martuscello and Kleinfeld, concur; Hopkins, J., dissents and votes to affirm on the authority of Matter of Connors v. Messina (308 N. Y. 877).
In our opinion, on the facts in the case, there was substantial compliance with section 138 of the Election Law. While the present residences of the signers of the nominating petitions and the residences from which they were registered at the last preceding general election were not separately set forth, the petitions contain the preamble required by subdivision 2 of section 138 that "my present place of residence and my place of residence at the time of the last preceding general election are truly stated opposite my signature hereto". Since only one address was given for each signer, it seems clear that each address stated was both the present address and the address at the time of the last preceding general election. No fraud or deception is alleged; and we find that the absence of literal compliance with the statute is not fatal to the sufficiency of the nominating petitions (cf. Matter of Sykes v. Millspaugh, 22 A.D.2d 710, affd. 15 N.Y.2d 504; Matter of Saal v. Board of Elections for County of Nassau, 32 A.D.2d 800
, affd. 25 N.Y.2d 793). We believe that Matter of Connors v. Messina (308 N. Y. 877) does not require a contrary result. There, the failure separately to state the residences from which the signers were registered at the time of the last preceding election was not the only defect in the nominating petitions; and it does not appear that the language above quoted was contained in the petitions there involved.
Judgment reversed, on the law and the facts, without costs, and nominating petitions declared valid.
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