Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
Manus J. O'Donnell appealed from a judgment of the Superior Court, Law Division, entered on June 26, 1963, declaring that John T. Livingston, rather than he, had been elected to fill the third seat on the three-man Board of Commissioners of the Borough of Avon-by-the-Sea, as the result of the municipal election held on May 14, 1963. Harry B. Crook, Jr. and William A. Herbert had, concededly, been elected to fill the other two seats.
O'Donnell had originally been declared the winner over Livingston and had been sworn into office as the third commissioner. He performed the duties of a commissioner and received his official salary until his certificate of election was annulled by the judgment of the Law Division. The salary of a commissioner in Avon is $1,125 per annum.
O'Donnell died on November 4, 1963 while his appeal was pending and before oral argument. On motion made by his attorney, we permitted O'Donnell's widow, as administratrix of his estate, to be substituted as appellant. Livingston opposed the substitution. We felt that the public interest in having only a duly elected person serve as commissioner and the possible claim of O'Donnell's estate to the emoluments of the office prior to his death justified our grant of permission to O'Donnell's administratrix to complete the appeal which he had instituted in his lifetime.
The original tabulation of the voting showed the following results:
Harry B. Crook, Jr. 693 votes
William A. Herbert 615 votes
Manus J. O'Donnell 555 votes
John T. Livingston 542 votes
Henry M. Brewster 474 votes
Richard E. Merlino 154 votes
Based thereon, the board of canvassers declared Messrs. Crook, Herbert and O'Donnell the duly elected commissioners.
Livingston, as a defeated candidate, contested O'Donnell's election and petitioned the Superior Court, Law Division,
pursuant to N.J.S.A. 19:29-1 et seq. , to annul the certificate of election issued to O'Donnell and to direct a certification that he had been elected. He claimed that 54 of the 94 nonmilitary absentee ballots had been rendered void by reason of the fact that 51 of them had been notarized by candidate Crook, 2 by candidate O'Donnell and 1 by candidate Brewster. No question was raised as to the military absentee ballots.
Following a hearing in the Law Division, the trial court declared invalid all of the 94 nonmilitary ballots. The 54, admittedly notarized by the three candidates, were declared void solely because they were so notarized. Since they constituted the majority of the civilian absentee ballots which were cast and could not be disassociated from the remainder, the entire civilian absentee vote was nullified. Such action was taken in reliance upon In re Donahay's Contested Election , 21 N.J. Misc. 360, 34 A. 2 d 299 (Cir. Ct. 1943).
The civilian absentee votes were distributed among the candidates as follows: