Opinion
September 16, 1940.
Attempt to appeal from a ruling in the above-entitled proceeding to cancel the enrollment of certain electors in the American Labor Party in Rensselaer county. The petition was presented and order to show cause was signed on September 7, 1940. The primary is fixed by statute [Election Law, § 191] for September 17, 1940. The statute [Election Law, § 332] required that the proceeding be "instituted by a duly enrolled voter * * * at least ten days before a primary election." The court ruled that the proceeding was timely instituted although the order was not served upon the enrolled voters ten days before the primary, but made no other determination. The order is but a ruling of the court and an appeal therefrom does not lie except upon a review of the final determination of the issues raised in the proceeding. (Civ. Prac. Act, § 583; Kingsway Construction Co. v. Metropolitan Life Ins. Co., 161 App. Div. 649; Reade v. Halpin, 180 id. 157; Jackman v. Hasbrouck, 168 id. 256; Kramer v. U.S.F. G. Co., 212 id. 644.) Appeal dismissed. Hill, P.J., Crapser, Heffernan and Foster, JJ., concur; Schenck, J., dissents.