Order of Appellate Division reversed and the judgment of Special Term, Supreme Court, Nassau County, entered January 22, 1965, declaring that the votes cast in the general election held November 3, 1964 for the office of District Judge of the County of Nassau, Third District, resulted in a tie, reinstated. We hold that the testimony adduced was insufficient as a matter of law to deprive the soldier voter and his wife of their right to vote in New York (N.Y. Const., art. II, §§ 1, 4; Election Law, §§ 151, 303, 309) and that the votes cast were valid.
Concur: Chief Judge DESMOND and Judges DYE, BURKE, SCILEPPI and BERGAN. Judges FULD and VAN VOORHIS dissent and vote to affirm upon the opinion at the Appellate Division.