Ristorucci v. Secretary of State of New York

Edward S. Conway, J.

Petitioner seeks an order directing the Secretary of State to place the name of Freedom and Peace party and its nominees for the office of presidential Electors on the voting machines throughout the State of New York at the general election to be held on November 5, 1968.

Respondent moved to dismiss the proceeding on two grounds or contentions.

The first contention of the respondent, that the proceeding is untimely under subdivision 1 of section 330 of the Election Law, is unfounded. There is no time limit for proceedings under subdivision 3 pertaining, as this proceeding does, to the form and contents of official ballots, including ballots upon voting machines, except that the last paragraph of said section 330 provides that a final decision in any proceeding involving the contents of official ballots on voting machines shall be rendered, if possible, at least one week before the day of the election at which such voting machines are to be used.

The second contention of the respondent, that the petition is defective due to the failure of the petitioner to allege that all of the persons nominated by the Freedom and Peace party had filed an acceptance of nomination as required by subdivision 1 of section 139 of the Election Law, is also an unfounded contention to support respondent’s motion. It is unfounded, for the respondent, as Secretary of State, has not declared all of the nominations invalid for failure of the nominees to file acceptances but has merely denied a place upon the voting machines to those who have filed such acceptances on the ground that less than a full slate of presidential Electors have thus been validly nominated by the Freedom and Peace party.

This court has decided this question in a decision of even date herewith in a similar motion brought at the above Special Term entitled Matter of Horowitz v. Secretary of State of State of N. Y. (57 Misc 2d 1037).

Petition granted.