Majority
p. 891In the Matter of the Application of Harry Bergen for an Order to Invalidate and Declare Null and Void the Designating Petition Piled by or on Behalf of A. Irwin Miller with the Board of Elections of the City of New York on the 10th day of October, 1933, as a Candidate to the Office of Member of Assembly, Sixteenth Assembly District of the County of Kings, State of New York, in the General Election to Be Held on the 7th Day of November, 1933, and for a Further Order Enjoining and Restraining the Board of Elections of the City of New York from Printing and Placing upon the Official Ballot to Be Voted for at Said Election the Name of A. Irwin Miller, as a Candidate for Said Office, under the New Era Party.[1]
In view of the unchallenged representation on the argument that petitioner was ready at Special Term to present proof of the allegations of the petition that more than enough signatures are invalid to reduce the valid signatures below 1,500, and also furnished his adversary with a list of the names challenged, the order is reversed on the law and the facts and the matter is remitted to the Special Term to take proof at once to determine if the petition contains 1,500 valid signatures. The determination shall take into consideration subdivision 4 of section 137 of the Election Law. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.