Application of Tani | Cases | Westlaw

As the action of the respondent Board of Elections is presumptively correct, the burden of proof rests on the petitioner to establish his claims (Application of Burns, 199 Misc. 1005, 106 N.Y.S.2d 993, affd. 278 App.Div. 1023, 106 N.Y.S.2d 1005, affd. 303 N.Y. 601, 100 N.E.2d 885; Bloom v. Power, 21 Misc.2d 885, 193 N.Y.S.2d 697, affd. 9 A.D.2d 626, 191 N.Y.S.2d 152). Each of the contentions are considered in its order.

Section 138–a, enacted in 1954 (L.1954, c. 745), was clearly designed to overcome the force of decisions which held that signatures using initials, or abbreviations, or the title ‘Mrs.’ were invalid (Hall v. Heffernan, 185 Misc. 742, 59 N.Y.S.2d 299, affd. 269 App.Div. 953, 59 N.Y.S.2d 271, affd. 295 N.Y. 599, 64 N.E.2d 291; Lyden v. Sullivan, 269 App.Div. 942, 57 N.Y.S.2d 657; Pavis v. Heffernan, 185 Misc. 626, 57 N.Y.S.2d 923, affd. 269 App.Div. 912, 57 N.Y.S.2d 828). The purpose of section 138–a has been recognized by the courts and its provisions enforced to permit the use of signatures with initials and abbreviations (McManus v. DeSapio, 13 Misc.2d 513, 182 N.Y.S.2d 516, affd. 7 A.D.2d 613, 178 N.Y.S.2d 1012, affd. 5 N.Y.2d 773, 179 N.Y.S.2d 866).

The petitioner cites no case to uphold his contention of the unconstitutionality of section 138–a. We cannot see in what manner the Board of Elections is invested with an unlawful delegation of power. The statute permits the Board to employ the register of voters to identify the signature; this, surely, is a reasonable means of identification. The process of identification *55 is always a matter of judgment, and is sometimes difficult; that cannot be a ground for saying that the exercise of the authority is unreasonable. It may be recalled that the opinion of a lay witness—not an expert—is admissible to establish the genuineness of the handwriting of another (cf. Matthews v. Hill, 165 App.Div. 672, 675, 151 N.Y.S.2d 101; **318 Gross v. Sormani, 50 App.Div. 531, 64 N.Y.S. 300; Johnson v. Daverne, 19 Johns. 134). This contention of the petitioner is therefore overruled.

2. 6 witnesses testified that they had signed their names, but not in the presence of the subscribing witness, who was the respondent La Pera in each instance. The respondent La Pera testified that he had seen them sign their names, although he had not obtained the signature in every case. He said that he had been accompanied by a friend who had solicited the signature, but had been within visual distance. This is not sufficient to authenticate the signatures (Johnson v. Westall, 208 Misc. 360, 144 N.Y.S.2d 633, affd. 286 App.Div. 966, 146 N.Y.S.2d 475; Stephens v. Heffernan, 186 Misc.2d 275, 59 N.Y.S.2d 234; Matter of Baialis, Co.Ct., 92 N.Y.S.2d 450). The signatures are therefore invalid (Ethel D. Flynn, sheet 52, line 4; Catherine Kaine, sheet 20, line 16; Anthony Antonelli, sheet 7, line 3; Marian Schroeder, sheet 26, line 5; Anne Bernabie, sheet 40, line 6; Dorothy M. Brehaut, sheet 26, line 3).

In addition, the respondent La Pera admitted that he did not see Mrs. Antonelli sign (sheet 7, line 4). He also testified that Mr. Marello signed his wife's name (sheet 2, line 13).

3. The court is satisfied from the proof presented that 15 persons who signed the petition of the respondent La Pera had also signed the petitioner's petition. The 15 signatures cannot be counted for the respondent La Pera (sec. 138, subd. 6, Election Law).

After considering all the testimony, the court cannot find that forgery of the 45 signatures was established. Where fraud is charged, it is elementary that the burden of proof lies on the party making the claim to established it by clear and convincing evidence (McQuade v. Heffernan, 197 Misc. 990, 99 N.Y.S.2d 871, affd. **319 277 App.Div. 947, 98 N.Y.S.2d 1021), consonant with the rule in any case when fraud is the issue that it is never presumed and cannot be based on conjecture or doubtful inference (Arthur v. Griswold, 55 N.Y. 400, 410; Ochenkowski v. Dunaj, 232 App.Div. 441, 251 N.Y.S. 589). The court finds that the petitioner did not sustain the burden of proof as to the signatures claimed to be forgeries.

Courts have struck down nominating petitions where wholesale fraud and unexplained wrongdoing have been shown to have been committed in their circulation, and the candidate named therein to have actively abetted and participated in the practices (see Bloom v. Power, 21 Misc.2d 885, 193 N.Y.S.2d 697, affd. 9 A.D.2d 626, 191 N.Y.S.2d 152; Application of Vukelic, 23 Misc.2d 509, 200 N.Y.S.2d 1018, affd. 11 A.D.2d 638, 201 N.Y.S.2d 809). Irregularities which may have the effect of invalidating a signature is not enough to demonstrate the illegality of the petition as a whole. Thus, the courts have not considered that the improper authentication of several pages of a petitioner (Carroll v. Heffernan, 201 Misc. 974, 115 N.Y.S.2d 639, affd. 280 App.Div. 883, 114 N.Y.S.2d 922), the certification, falsely but not wilfully made, that a person signed the petition in the presence of the subscribing witness (Johnson v. Westall, 208 Misc. 360, 144 N.Y.S.2d 633, affd. 286 App.Div. 966, 146 N.Y.S.2d 475), the signing of one spouse's name by another (Cole v. Winfield, 201 Misc. 1049, 115 N.Y.S.2d 113, affd. 280 App.Div. 883, 114 N.Y.S.2d 921; Contessa v. Powers, 25 Misc.2d 93, 205 N.Y.S.2d 148), or even the existence of isolated instances of forgeries (Reilly v. Heffernan, Sup., 73 N.Y.S.2d 312, affd. 272 App.Div. 964, 72 N.Y.S.2d 288), have been sufficient to nullify the petition. The question in every case is whether the evidence of *57 irregularities and fraud is so ample that the validity of the petition as a whole is in doubt.

Here the petitioner's proof does not compel that conclusion. One signature is shown not to be genuine; the witness says that his wife may have written it. Six witnesses testified that they had not signed their names in the presence of the respondent La Pera; he identified three of them in the courtroom before they testified. He admitted to **320 irregularities in two signatures (Mrs. Antonelli; Mrs. Marello). This evidence does not justify the inference of wholesale fraud and deception.