Opinion
February 14, 1962
In a proceeding under section 330 of the Election Law, to invalidate the independent petition nominating respondent, Seymour R. Thaler, as a candidate of the New Frontier party for the public office specified in the caption, petitioners appeal from an order of the Supreme Court, Queens County, entered February 14, 1962 upon the decision of the court after a hearing, which denied their application and which declared said nominating petition to be valid upon the ground that it complies substantially with the provisions of section 138 of the Election Law. Order reversed on the law, without costs; application granted; and said nominating petition declared to be invalid, null and void. No questions of fact were considered. It is conceded that no committee on vacancies was named in the nominating petition. The naming of such a committee was required by the statute (Election Law, § 138). In our opinion, the failure to comply with the statute is fatal; such failure renders the petition a nullity.
It was within the discretion of the signers of the nominating petition to name a committee on vacancies. In the event they elected to do so, then such committee was required to be named in the form prescribed by the statute (Election Law, § 138). The failure to make such election, however, and the consequent omission to name a committee on vacancies, did not serve to invalidate the nominating petition (cf. Matter of Brennan v. Power, 307 N.Y. 818).