
    In the Matter of J. Daniel Mahoney, Appellant, v Stephen May et al., Constituting the New York Board of Elections, and Daniel P. Moynihan et al., Respondents.
    Argued October 27, 1976;
    decided October 27, 1976
    
      
      John Van Voorhis and Stephen R. Coffey for appellant.
    
      Herbert Rubin and Victor A. Lord for Henry Stern and others, respondents.
    
      Edward M. Murray and Chester J. Straub for Daniel P. Moynihan, respondent.
   Memorandum. Order of the Appellate Division affirmed, without costs.

The Appellate Division having reversed on the facts as well as the law this court is free to make its own resolution of the facts (Cohen and Karger, Powers of the New York Court of Appeals, § 112, esp n 91). It accepts the resolution of the Appellate Division that there is insufficient evidence in the record to support a finding that "there was a plan or scheme of fraud or the purpose to circumvent the policy of the Election Law”, assuming that the caveat in Matter of Farbstein v Suchman (26 NY2d 564, 567) presages a rule that this court will follow (cf., however, Matter of McGraw v Power, 307 NY 824). Moreover, in considering the facts, the general practice of the parties, particularly the minor parties, to substitute candidates is so prevalent that no one is or should be deceived. The situation, of course, would be quite different if there were evidence, beyond the practice itself, to establish actual deception of the voters or members of the party involved. As for the policy of the Election Law, since the Legislature has known of the practice of substitution of candidates without fraud these many decades, if the practice violates legislative policy, the Legislature should speak to it by appropriate amendment of the Election Law.

The court otherwise agrees with the courts below that petitioner has standing to bring the proceeding and that it was brought timely.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  