
    In the Matter of Emanuel Celler, Appellant, v. William F. Larkin et al., Constituting the Board of Elections of the City of New York, et al., and Elizabeth Holtzman, Respondent.
    Argued September 12, 1972;
    decided September 12, 1972.
    
      
      Julius Tenner, Fabian G. Palomino and Robert B. Brady for appellant.
    
      Bernard W. Nussbaum for respondent.
   Concur: Chief Judge Ftjld and Judges Bergan, Breitel, Jasen and Gibson. Judges Burke and Scileppi dissent and vote to reverse in the following separate memoranda.

Burke, J.

(dissenting). I dissent and vote to reverse on the ground that the evidence presented in this case and in other cases coming from Kings County clearly indicates that there was no way to ascertain with accuracy the correct number of irregularities, since there was, by the admission of the Board of Elections, utter confusion. Under the circumstances the rule of probability could not apply. In addition, there were voters who were permitted to vote illegally: (1) those persons who had not voted for two years; (2) voters whose registration had taken place on street corners and had not been properly attested in accordance with the Election Law; (3) there was evidence that thousands of voters were turned away from the polls because many polling places opened late and closed early, and (4) in a great number of election districts there was only one clerk although two are required by law. This problem was compounded by the failure of the Election Board to have an appropriate number of voting machines at the polling places with the result that many individuals, because of this shortage and the limitation of voting hours, were denied the right to vote. Under these circumstances, on this record there was no way legally to determine who was rightfully elected in a Congressional race of this magnitude and national importance where the plurality was a mere 609 votes.

Scileppi, J.

(dissenting). I dissent and vote to reverse on the ground that irregularities in connection with the obtaining of registrations, and other irregularities, rendered it impossible to determine who was properly elected. These irregularities were in sufficiently large numbers to establish the probability that the result could have been changed by the invalidation of the votes east by these questioned registrants.

Order affirmed.  