Rosenshein v. Millspaugh — 33 N.Y.2d 727

Majority

p. 727

In the Matter of Sam Rosenshein, Appellant, v. Mildred Millspaugh et al., Constituting the Board of Elections of Sullivan County, and Bernard Ruderman et al., Respondents. In the Matter of Joseph B. Kross, Appellant, v. Sam Rosenshein et al., and Mildred Millspaugh et al., Constituting the Board of Elections of Sullivan County, Respondents.

Argued October 18, 1973;

decided October 23, 1973.

p. 729

Stephen L. Oppenheim for Sam Eosenshein, appellant in first above-entitled proceedings, and for Sam Eosenshein and George Bedik, respondents in second above-entitled proceeding.

Michael Gottlieb and Seymour Krieger for Joseph B. Kross, appellant in second above-entitled proceeding, and for Joseph B. Kross and Bernard Buderman, respondents in first above-entitled proceeding.

Abraham Kleinman, County Attorney (Michael Keiser of counsel), for Mildred Millspaugh and others, constituting the Board of Elections of Sullivan County, respondents in both proceedings.

In first above-entitled proceeding: Order reversed, without costs, and the judgment of Special Term directing the Board of Elections to accept petitioner’s certificate of designation filed by the People United Party reinstated. The proceeding commenced by the petitioner was timely pursuant to subdivision 2 of section 330 of the Election Law.

In second above-entitled proceeding: Order affirmed, without costs. The Appellate Division improperly dismissed this proceeding for untimeliness since it was timely commenced pursuant to subdivision 2 of section 330 of the Election Law. However, on the merits, we hold that the Committee on Vacancies was properly constituted and the certificate of nomination was valid. Accordingly, the order of the Appellate Division dismissing the proceedings should be affirmed on those grounds.

Concur: Chief Judge Fuld and Judges Búrke, Jasen, Gabrielli, Jones, Wachtler and Shapiro^[1] .

* Designated pursuant to section 2 of article VI of the State Constitution in place of Breitel, J.