
    In the Matter of Israel Ruiz, Jr., Appellant, v. David N. Dinkins et al., Constituting the Board of Elections of the City of New York, Respondents, and Barry Salman, Respondent.
   Appeal from judgment, Supreme Court, Bronx County, entered May 21, 1973, dismissed, without costs and without disbursements, for lack of a record. Assuming, however, that the record would be substantially in the form claimed by appellant on the argument, we would, if wé did not dismiss, affirm upon the merits. Concur — Markewich, J. P., Kupferman, Steuer and Capozzoli, JJ.; Nunez, J., dissents in the following memorandum: I would remand to Special Term to give appellant an opportunity to establish the legality of a sufficient number of signatures to qualify. Ruiz has been denied fundamental fairness. For lack of time and facilities at the Board of Elections he was not permitted to show that he had filed a sufficient number of valid signatures to be placed on the ballot. He should have been permitted to do so. The ultimate decision — who is to be elected — should be made by the voters and not by this or any other court.  