Judgment, Supreme Court, Bronx County, entered on August 20, 1974, reversed, on the law and the facts, without costs and without disbursements, and respondent Board of Elections directed to accept the petition. There is insufficient evidence to overcome the rule that a public officer, here the notary public, has performed a duty imposed by law.
Concur — Markewich, J.P., Kupferman, Tilzer and Capozzoli, JJ.; Murphy, J., dissents in the following memorandum:
I would affirm. Section 135 of the Election Law establishes the form that a notary public must use as opposed to other subscribing witnesses. None of the 19 witnesses who testified at the hearing presented any evidence of compliance with the statute nor was the notary produced to testify to adherence to said statute. On this record the referee and Special Term's findings should be sustained. ( Matter of Donnelly v. Dowd, 17 A.D.2d 712, affd. 12 N.Y.2d 651. )