Scott v. Curran — 277 A.D.2d 344

Majority

p. 344

In the Matter of Janet Scott, on Behalf of Herself and Others Similarly Situated, Respondent, against Thomas J. Curran, as Secretary of State of the State of New York, Defendant, and Thomas F. Donohue et al., Constituting the Board of Elections of Albany County, Appellants.

Third Department,

October 5, 1950.

p. 345

Walter L. Collins, County Attorney (Evariste C. Lavigne, of counsel), for the Board of Elections of Albany County, appellant.

Gray & Sidman and Morris Zuchman, for Janet Scott and others similarly situated, respondents.

The Special Term, invoking its discretion, directed the filing of such certificates despite the fact that they failed to comply with the statute (Election Law, § 140) in that there were not appended thereto the written consents, duly acknowledged, of the nominees.

No proof, oral or written, was taken before the Special Term, and the petition before the Special Term alleged no facts sufficient for the exercise of the court’s discretion.

Hence, in our opinion, the Special Term was without jurisdiction to make that part of the order appealed from.

The order, insofar as appealed from, should lie reversed on the law and facts, without costs, and application denied.

p. 346

Fosteb, P. J., Heffeenan, Bebgan and Coon, JJ., concur; Deyo, J., dissents and votes to affirm on the authority of Matter of Wheeler v. Curran ( 274 App. Div. 911 ).

Order insofar as appealed from reversed, on the law and the facts, without costs, and application denied.