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In the Matter of the Application of Henry Brickman, Abraham Unger and Edward Kuntz, Candidates of the All People's Party for Judges of the Court of General Sessions in the General Election of 1936, to Compel the Board of Elections of the City of New York to Accept the Nominating Petitions Filed in Their Behalf and to Place Their Names upon the Voting Machines to Be Voted on in the Election to Be Held on November 3, 1936 Irving H. Saypol, Objector-Intervenor, and Board of Elections of the City of New York
Opinions in this case
- Majority
- Dissent — Untermyer
Per Curiam. The affidavits involved in finding of fact No. 1 and those affidavits necessary to support finding of fact No. 2 which were made by the witnesses Refuge, Quintana, Blethen, Cerrato, Peace and Corella substantially comply with the requirements of section 135 of the Election Law. (Matter of Baum, 268 N. Y. 614.) The result reached gives enough names to justify the order and the court has found it unnecessary to pass on the other affidavits which have been objected to.
The nominating petition of Edward Kuntz for judge of the Court of General Sessions must, however, be stricken out since at the time of the filing he was not a resident of the county of New York but was concededly a resident of the county of Bronx. He was not “ capable of holding ” the office within the meaning of section 3 of the Public Officers Law. (People v. Purdy, 154 N. Y. 439.) The act of nomination is part of the process of choosing the incumbent of the office.
The order should be modified by striking out from the phrase “ is not disqualified ” in paragraph “ 5 ” of the order the word “ not ” and by striking out so much of the order as directs that the name of Edward Kuntz be put upon the voting machine as a candidate for judge of the Court of General Sessions of the All People’s party, and as so modified, affirmed. Present — Martin, P. J., O'Malley, Townley, Untermyer and Dore, JJ.; Untermyer, J., dissents in part.