
    In the Matter of Benjamin J. Davis, Petitioner, against Board of Elections of the City of New York et al., Respondents.
    Supreme Court, Special Term, New York County,
    September 30, 1958.
    
      Freedman S Unger (David M. Freedman of counsel), for petitioner.
    
      Abraham J. Gellinoff for o'bjectors-respondents.
    
      Charles E. Tenney for Board of Elections, respondent.
   Henry Epstein, J.

Petition to direct the Board of Elections of New York City to place name of petitioner on the ballot as a candidate for State Senator, 21st Senatorial District, at the general election on November 4, 1958, is denied.

(1) The fact that only three of the four members constituting the Board of Elections acted to invalidate the petition does not violate the law. The fourth member of the board is deceased. His successor was not in being. The action of the board was unanimous. The board was legally constituted and its action valid.

(2) Section 138 of the Election Law is a reasonable statutory regulation of election procedure in its provision for nominations by independent petition. It is not discriminatory and in no sense arbitrary. It does not violate section 8 of article II of the State Constitution.

(3) No proof was tendered at the hearing to prove the board’s action was improper. The ruling on the objections showed that 3,580 of the 5,988 signatures were not registered as required by law and therefore the petition did not have enough signatures as provided. There were numerous other signatures, numbering 1,441, which were held invalid for other reasons. The nonregistered signatories were sufficient in number to invalidate the petition.

Nothing in the cases cited (Matter of Burke v. Terry, 203 N. Y. 293; Matter of Hopper v. Britt, 204 N. Y. 524; Matter of Moore v. Walsh, 286 N. Y. 552) supports the position of petitioner.

As a matter of law, the petition is invalid.

Order signed.  