In re Dorgan

The opinion of the court was delivered Per Curiam

This case involves the election for the office of Mayor of the Borough of Palisades Park held in November 1964. The trial court ordered the election set aside. We certi *441 fied the ensuing appeal before hearing in the Appellate Division.

The original tally and the tally on recount showed 3,112 votes for Michael Pollotta and 3,108 for William J. Dorgan. After trial on a complaint of illegal voting, the court found that four such votes were cast for Pollotta reducing the vote for him to 3,108, the same number recorded for Dorgan, but found that one absentee ballot counted for Dorgan was invalid because, although the intent to vote for him was clear, the mark was placed just outside the square provided for it. The court felt it was obliged to disallow that vote under In re Keogh-Dwyer, 85 N. J. Super. 188 (App. Div. 1964), in which matter an appeal is now before us. There were 15 additional illegal votes as to which the trial court concluded it was unable to say for whom they were cast. Some of those voters said they voted for Dorgan and some for Pollotta, but the trial judge, who had the benefit of seeing those witnesses, was not persuaded to credit their unsupported statements. Finally, the votes recorded on the voting machines exceeded by six the number of persons who signed the voting books and the number of voting authorities issued.

We think that upon this factual complex the trial court correctly concluded that neither candidate was entitled to a certificate of election and that the election be set aside.

The judgment is affirmed. No costs.

For affirmance — Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Sciiettino and Haneman —7.

For reversal—None.