Fox v. Westchester County Board of Elections

In a proceeding to invalidate a petition designating John R. La Cava and Bruce E. Tolbert as candidates in the Conservative Party primary election to be held on September 10, 1985 for certain public offices in the City of Yonkers, petitioners appeal from a judgment of the Supreme Court, Westchester County (Dickinson, J.), entered August 13, 1985 which dismissed the proceeding, and respondent candidates cross-appeal from so much of the judgment as failed to dismiss the proceeding on the ground of improper service of process. Cross appeal dismissed, without costs or disbursements (see, Parochial Bus Sys. v Board of Educ., 60 NY2d 539; CPLR 5511). Judgment affirmed, without costs or disbursements. It was stated on the cover sheet of the designating petition that it contained 343 signatures while the petition in fact contained 342 signatures. This de minimis error resulted from the misreading of the number "7” at the bottom of one of the signature pages as an "8”. The error was innocent and was satisfactorily explained; it carried no potential for abuse or fraud nor any possibility of circumventing the statute’s purposes. The petition complied with all other statutory requirements of the Election Law (Matter of Staber v Fidler, 110 AD2d 38; Matter of Comstock v Wolf, 112 AD2d 1061; Matter of Fromson v Lefever, 112 AD2d 1064; Matter of Jonas v Black, 104 AD2d 466, affd 63 NY2d 685). We find no merit to respondent candidates’ contention that appellants did not exercise due diligence under CPLR 308 (1) and (2) before effecting service pursuant to CPLR 308 (4) (cf. Barnes v City of New York, 70 AD2d 580, affd 51 NY2d 906). Brown, J. P., O’Connor, Weinstein, Kunzeman and Kooper, JJ., concur.