Opinion
October 23, 1958
Appeal from an order of the Supreme Court, Albany County Special Term, which denied an application for an order directing the Commissioners of Election of Ulster County to print and place the names of petitioners for the respective offices designated in the petition of the Economy party on the ballot to be voted for in the general election to be held November 4, 1958. The proceeding herein was brought under article 78 of the Civil Practice Act. The Special Term elected to consider it a proceeding under section 330 of the Election Law; holding that otherwise it would have no jurisdiction. It appears that the petition herein for the nomination of independent candidates under the name of the Economy party was filed with the Board of Elections of Ulster County, which consists of two individuals, who notified the petitioners herein that because the said commissioners could not agree upon the validity of the petition that they refused to accept the same. No objections have been filed by any interested party since except those raised by the intervenors, and they were permitted to intervene only after the proceeding had been initiated. We think the reasons as given by the Commissioners of Election for the rejection of the petition were invalid. ( Matter of Cavallaro v. Cohen, 268 App. Div. 833, affd. 293 N.Y. 741; Abrahams, Election Law, p. 343.) The Board of Elections could have rejected the petition pursuant to section 103 of the Election Law as not complying with the statute; but the fact they gave an erroneous reason for the rejection of the petition does not deprive the Supreme Court of its summary power under section 330 of the Election Law to hold that the petition did not conform either in form or substance to the requirements of section 138 of the Election Law. The Special Term ( 13 Misc.2d 701) found that the petition did not have a sufficient number of valid signatures and that finding has not been challenged. Order affirmed, without costs. Foster, P.J., Gibson, Herlihy and Reynolds, JJ., concur.