
    In the Matter of Carmine G. DeSapio, Appellant, v. Edward I. Koch, Respondent, and James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 28, 1964;
    decided May 7, 1964.
    
      
      Arthur Karger, James J. Leff and Moses L. Kove for appellant.
    
      Stanley Geller, Lester Evens, Leonard E. Sandler and Arnold Weiss for Edward I. Koch, respondent.
    No appearance for remaining respondents.
   Per Curiam.

At the Democratic primary election held September 5,1963 for the party position of Male Leader of the First Assembly District, Part A, New York County, the official canvass recorded the election of the respondent, Edward I. Koch, by 41 votes out of a total of more than 9,000 east.

The petitioner, DeSapio, instituted this proceeding, pursuant to subdivision 2 of section 330 of the Election Law, for an order directing a holding of a new primary election for the party position involved, on the ground that 65 specific, identifiable votes cast were invalid and should not have been counted. Concededly, 45 of the contested votes were cast by persons who did not sign the registration poll records.

The Special Term, after a hearing, sustained objections to 15 votes cast by persons who had not signed the registration poll records and 20 cast by persons who either were not enrolled in the Democratic party or did not reside in the district, a total of 35 votes, and dismissed the objections to the remaining 30.

The Appellate Division affirmed the Special Term by a divided court, one Justice dissenting. The only issue is whether, in addition to the 35 votes found to be invalid, the court below should have invalidated also 30 votes concededly cast by persons who failed to sign the registration poll records. We think the votes so cast were invalid and should not have been counted (N. Y. Const., art. II, § 7; Election Law, § 413). We may not, however, declare petitioner DeSapio the winner, since the irregularities in the election were such as to render impossible a determination as to who rightfully was nominated or elected ’ ’ (Election Law, § 330, subd. 2).

The order appealed from should be reversed, without costs, and the matter remitted to the Special Term, Supreme Court, New York County, for the entry of an order granting the relief prayed for in the petition, with instructions to order a new primary election for the office of Male Leader of the First Assembly District, Part A, New York County. •

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke, Scileppi and Bergan concur.

Order reversed, etc.  