Jerry v. Barber — 5 N.Y.2d 768

Majority

p. 768

In the Matter of Harold A. Jerry, Jr., Appellant-Respondent, against Howard P. Barber et al., Constituting the Board of Elections of Chemung County, et al., Respondents, and Harry K. Morton, Respondent-Appellant.

Argued October 8, 1958;

decided October 16, 1958.

p. 769

Harold A. Jerry, Jr., appellant-respondent in person.

Harry K. Morton, in person, and Albert E. Hollis for Harry K. Morton, respondent-appellant.

Reargued October 24, 1958;

decided October 24, 1958.

Order, insofar as it declares Harry K. Morton to be the Republican nominee for the office of State Senator for the 49th Senatorial District, reversed and the matter remitted to Special Term for entry of an order granting the relief prayed for in the petition. Upon inspection of the primary ballots passed on in the Appellate Division, we hold that, in 3 instances, ballots marked for Harry K. Morton were not void by reason of identifying marks as found in the Appellate Division and should have been counted for him, and that, in 143 instances, ballots marked for Harry K. Morton and ruled as valid in Special Term and affirmed in the Appellate Division were wholly void due to marks thereon other than a cross X mark in a voting square or circle and should not have been counted for said Harry K. Morton (Election Law, § 212, rule 1). In other respects, we agree with the findings of the Appellate Division. Accordingly, we rule that Harold A. Jerry, Jr., having received a majority of 131 of all votes cast, is the nominee of the Republican party for the office of State Senator, 49th District. Our inspection of the additional ballots submitted by the parties, with our permission, does not change that result. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Fkoessel, Van Voorhis and Burke.

Motion for reargument granted.

Upon reargument, we adhere to previous decision of October 16, 1958. We have examined the 8 additional ballots now challenged by respondent Morton and not submitted to the Appellate Division and find that ballots numbered 37, 38, 39 and 278 were void, and ballots numbered 296, 299 and 466 were blank as to appellant Jerry, and that ballot numbered 232 is valid as found by the courts below. These ballots, as well as the additional ballots challenged by respondent Morton and not passed on in the Appellate Division and which we considered on the main argument, do not change our original holding that appellant Harold A. Jerry, Jr., is the Republican nominee for

p. 770

the office of State Senator for the 49th Senatorial District. No opinion.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Vooehis and Burke. Taking no part: Judge Desmond.