Curley v. Heffernan 269 A.D. 953

Order reversed on the law and the facts, without costs, and the matter remitted to Special Term so that the Justice who heard the matter may make findings of fact and conclusions of law pursuant to section 440 of the Civil Practice Act and, if need be, for the purpose of taking further proof to. facilitate the making of such findings and conclusions. Close, P. J., Carswell and Lewis, JJ., concur; Johnston, J., dissents and votes to affirm, with the following memorandum: The Special Term passed upon all objections urged by petitioner except the one alleging that the subscribing witness had set forth the wrong election district. The Special Term, after taking proof on all the other objections, found that the nominating petition contained 5,955 valid signatures, subject to checking to ascertain how many of the 5,955 signatories had registered. The witness McCormack, called by the respondent, testified that of the 5,955 signatories, 2,694 had not registered. Therefore, the Special Term’s findings that there were only 3,261 valid signatures on the nominating petition and that the petition was invalid are correct and the order should be affirmed; Hagarty, J., not voting.