Banrtolomeo v. Acito

—Appeal from a judgment of the Supreme Court at Trial Term, entered October 13, 1978 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to subdivision 1 of section 16-102 of the Election Law, seeking to declare valid the independent nominating petition designating petitioner as a candidate of the Property Tax Reform Party for the public office of member of the State Senate for the Fourth 661 Senatorial District. On September 21, 1978, the respondent commissioners received petitioner’s independent nominating petition for the Property Tax Reform Party, which named him as its candidate for the office of State Senator in the Fourth Senatorial District. The envelope containing the petition was postmarked September 19, 1978. On September 29, 1978, the respondent commissioners received general objections to the petition, in an envelope postmarked September 25, 1978. The Board of Elections sustained the objections and this proceeding ensued. The Trial Judge found that the objections were timely filed and that 2,712 of the 4,031 signatures on the nominating petition were invalid since they were authenticated by the petitioner as a subscribing witness. Accordingly, since the nominating petition contained less than the 3,000 required signatures it was found to be null and void. We agree. Since September 24, 1978 was a Sunday, the objections to the nominating petition were timely filed (Election Law, § 1-106, subd 1; § 6-154, subd 2). Petitioner was not a person duly qualified to sign the petition (Election Law, § 6-138, subd 1; § 6-140, subd 1) and, thus, the 2,712 signatures witnessed by the petitioner were properly invalidated (Matter of Carroll v McNab, 59 AD2d 727, mot for lv to app den [Oct. 14, 1977]; Matter of Doran v Scranton, 49 AD2d 976). Judgment affirmed, without costs. Motion for leave to appeal denied, without costs. Mahoney, P. J., Greenblott, Staley, Jr., Main and Larkin, JJ., concur.