Doherty v. Mahoney — 59 A.D.2d 824

Majority

p. 824

In the Matter of James F. Doherty, Respondent, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, Appellant; Jerry Voskerichian et al., Respondents; George K. Arthur et al., Appellants.

(Appeal No. 2.)

Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: We agree with Special Term’s determination that there was showing of irregularities in sufficiently large "number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes” to warrant a new primary election (Matter of Ippolito v Power, 22 NY2d 594 , 597, 598; Matter of Santucci v Power, 33 AD2d 517 , affd 25 NY2d 897 .) There is no authority, however, for the court’s direction that the new election for these three city-wide offices of councilman at large be limited to three council districts or to only two of the seven candidates (Santucci v Power, supra; Matter of Branagan v Todd, 19 AD2d 337 , affd 13 NY2d 888 ; see Election Law, § 330, subd 2). Reliance on Matter of Daubner v Dinkins ( 33 NY2d 649 ) for such an order is misplaced (see Matter of Silver v Feuer, 35 NY2d 758 , 760). Accordingly, the new election should include all seven candidates and be held city-wide. (Appeal from order of Erie Supreme Court —Election Law.) Present—Marsh, P. J., Moule, Dillon, Hancock and Goldman, JJ. (Decided Oct. 11, 1977.)

Cases cited

Ippolito v. Power 22 NY2d 594 N.Y. 1968-09-27 at 597, 598 p. 824
Santucci v. Power 33 AD2d 517 N.Y. App. Div. 1969-09-12 p. 824
Santucci v. Power 25 NY2d 897 N.Y. 1969-09-24 p. 824
Branagan v. Todd 19 AD2d 337 N.Y. App. Div. 1963-09-20 p. 824
Branagan v. Todd 13 NY2d 888 N.Y. 1963-10-01 p. 824
Daubner v. Dinkins 33 NY2d 649 N.Y. 1973-09-21 p. 824
Silver v. Feuer 35 NY2d 758 N.Y. 1974-10-25 at 760 p. 824