Marley v. Hamilton , 55 A.D.2d 864 ( 1976 )

In a proceeding to invalidate a petition designating Elmer Hamilton as a candidate in the Democratic Party primary election to be held on September 14, 1976, for the public office of State Assemblyman from the 54th Assembly District, Kings County, the appeal is from so much of a judgment of the Supreme Court, Kings County, entered August 30, 1976, as directed the board of elections to print on the ballot for the afore-mentioned primary election, such other candidate for the public office in question as is designated by the Committee on Vacancies which preferred Elmer Hamilton. Judgment affirmed insofar as appealed from, without costs or disbursements. Section 140 of the Election Law provides, inter alia, that "1. A vacancy in a designation * * * caused * * * by the * * * disqualification of the candidate * * * 2. * * * may be filled by a majority of the committee to fill vacancies shown upon the face of the petition”. In this case, the designee was disqualified by reason of his nonresidence in the assembly district in question, but the petition was otherwise valid. Under the circumstances, the Committee on Vacancies was properly empowered by Special Term to fill the vacancy (see Matter of Grieco v Bader, 43 Misc 2d 245, affd 21 AD2d 751; Matter of Blinn, NYLJ, Oct. 23, 1940, p 1220, col 1, affd 260 App Div 884). Latham, Acting P. J., Cohalan, Margett, Rabin and Shapiro, JJ., concur.