Kelly v. Cohen — 255 A.D. 787

Majority

p. 787

(October 13, 1938.)

In the Matter of the Application of Martin J. Kelly, Jr., Appellant, against S. Howard Cohen and Others, Constituting the Board of Elections of the City of New York, and the County Board of Canvassers of the County of Kings, and Stephen J. Carney, Respondents.

Order denying motion for a judicial recanvass, review and recount of all the ballots cast at the primary election for the office of member of the State committee for the Democratic party in the seventeenth Assembly district, Kings county, reversed on the law and the facts, and motion granted, upon the deposit of $360 with the board of elections to cover expense necessitated. The prima facie showing of irregularities, whether innocent or not, require, in view of the closeness of the vote, a full exercise of the plenary power of the court under section 330 of the Election Law. (Matter of Devine v. Osmann, 275 N. Y. 423 ; Matter of Holley [Rittenberg], 268 id. 484 .) Honorable Isaac M. Kapper, official referee, is designated to conduct the recount. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur. Settle order forthwith before Mr. Justice Carswell.

Cases cited

Devine v. Osmann 275 N. Y. 423 N.Y. 1937-10-08 p. 787