Finnegan v. Cohen — 262 A.D. 955

p. 955

First Department,

September, 1941.

(September 9, 1941.)

In the Matter of the Application of Eugene J. Finnegan, Petitioner, Appellant, for an Order Declaring Insufficient, Invalid, Illegal, Fraudulent, Perjured, and Void, the Alleged Petition Known as the Arthur J. W. Hilly Petition Purporting to Designate Candidates for Members of the Democratic County Committee in the 1 Through 56, Inclusive, Election Districts of the 11th Assembly District, New York County, against S. Howard Cohen and Others, They Constituting the Board of Elections in the City of New York, and Arthur J. W. Hilly, Being the First Person Named on the Committee to Fill Vacancies in the Said Alleged Designating Petitions, Respondents.

Appeal by the petitioner from an order of the Supreme Court, entered in the New York county clerk’s office on September 6, 1941, denying petitioner’s motion to strike out certain petitions for county committeemen.

Order affirmed, without costs. (See Matter of Holley [Rittenberg], 268 N. Y. 484 .) Leave to appeal to the Court of Appeals granted.

Present — O’Malley, Glennon, Dore, Cohn and Callahan, JJ.; O’Malley, J., dissents and votes to reverse and grant the motion; dissenting opinion by O’Malley, J. [ 177 Misc. 142 .]

(dissenting). The petitoner-appellant herein did not consent to the declinations. In this respect at least the situation differs from that presented in Matter of Holley (Rittenberg) ( 268 N. Y. 484 ). I, accordingly, dissent upon the authority of Matter of Powers v. Coughlin ( 268 N. Y. 623 ), and vote for reversal of the order appealed from.

Cases cited

In re Holley 268 N. Y. 484 N.Y. 1935-10-22 p. 955
Finnegan v. Cohen 177 Misc. 142 N.Y. Sup. Ct. 1941-09-05 p. 955
Powers v. Coughlin 268 N. Y. 623 N.Y. 1935-09-09 p. 955