Opinion
May 23, 1949.
Present — Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ.
Appeal by petitioners, qualified electors in a union free school district, from an order denying their application to vacate and annul two orders of respondent district superintendent of schools, dated March 15, 1949, and April 4, 1949, and dismissing the petition. Order unanimously affirmed, with $50 costs and disbursements. This proceeding may not be maintained under article 78 of the Civil Practice Act because the orders made by the district superintendent of schools, of which orders review is sought, did not involve the exercise of judgment or discretion. (Civ. Prac. Act, § 1284, subd. 2.) In any event, section 1512 Educ. of the Education Law, providing for the manner of voting at the meeting on the resolution for consolidation of the two school districts, is constitutional because such voting is not an election within the meaning of section 7 of article II of the New York State Constitution.