Opinion
April 2, 1956
In a proceeding, pursuant to section 330 of the Election Law, for the recanvass of the ballots cast in an election for the office of commissioner of Fishers Island Ferry District, the appeal by appellants Gada, Kee, Oswald, Edmonds and Baldwin, is from an order denying their motion, on a special appearance, to vacate and set aside the service of a notice of motion by which the proceeding was commenced, directing appellants to answer, and referring the proceeding for a hearing. The motion was made on the ground that the court, by the service of the notice of motion, did not acquire jurisdiction of the persons of appellants or of the subject matter of the proceeding. On the return day of the motion to direct a recanvass, the appellant town board appeared generally, and moved orally in open court to dismiss the petition for a recanvass on the ground of lack of jurisdiction of the subject matter, and on the further ground that the town board is not a proper party to the proceeding. On appeal by appellants Gada, Kee, Oswald, Edmonds and Baldwin, order affirmed, with $10 costs and disbursements. In our opinion the court acquired jurisdiction both of the persons of appellants and of the subject matter of the proceeding by the personal service of the notice of motion and the petition upon all persons required by the court to be so served, within the time limited by section 330 of the Election Law. The fact that this proceeding was not commenced by the service of an order to show cause is of no moment, in view of the fact that the court in the exercise of the summary and plenary jurisdiction provided by the statute, approved the service made and directed no further notice to any other person (Election Law, § 335). On appeal by the town board, appeal dismissed, without costs. ( Jackman v. Hasbrouck, 168 App. Div. 256; Reade v. Halpin, 180 App. Div. 157; Matter of Brundage [ Kirby], 282 App. Div. 880.) Appellants may answer within ten days after the entry of the order hereon, if so advised. Nolan, P.J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur. [ 1 Misc.2d 398.]