APPEAL from that part of an order of the Supreme Court at Special Term (TAYLOR, J.; opinion 198 Misc. 246) entered September 29, 1950, in Albany County, which directed appellants, constituting the Board of Elections of Albany County, to accept and file, nunc pro tunc, certificates of nomination of the American Labor Party for the election to be held on November 7, 1950, for the offices of member of State Senate and members of State Assembly, together with the written acknowledged consents of the persons nominated. The order also directed defendant Secretary of State to accept and file nunc pro tunc the nomination and written acknowledged consent of petitioner Janet Scott as candidate of said party for the office of member of Congress for the 32d Congressional District. The petition of Janet Scott, on behalf of herself and the other candidates similarly situated, alleged that certain other persons nominated for said offices at the fall primary election of the party, and who were not designated for such nominations, declined the nominations on September 6, 1950; that neither the Albany County Committee nor any other committee of the party in the county or congressional district met for the purpose of filling the vacancies; that the State Executive Committee of the State Committee of the party filled the vacancies by making and filing appropriate certificates, and that there had not been sufficient time to obtain and file written acknowledged consents by the new nominees. Section 140 of the Election Law requires that 'The certificate designating a person to fill a vacancy in a designation or nomination shall have appended thereto his written consent to be so designated or nominated, duly acknowledged.'

         COUNSEL

          Walter L. Collins, County Attorney (Evariste G. Lavigne, of counsel), for the Board of Elections of Albany County, appellant.

          Grays&s Sidman and Morris Zuckman, for Janet Scott and others similarly situated, respondents.

          Per Curiam.

          The Special Term, invoking its discretion, directed the filing of such certificates despite the fact that they failed to comply with the statute (Election Law, § 140) in that there were not appended thereto the written consents, duly acknowledged, of the nominees.

          No proof, oral or written, was taken before the Special Term, and the petition before the Special Term alleged no facts sufficient for the exercise of the court's discretion.

          Hence, in our opinion, the Special Term was without jurisdiction to make that part of the order appealed from.

          The order, insofar as appealed from, should be reversed on the law and facts, without costs, and application denied.          FOSTER, P. J., HEFFERNAN, BERGAN and COON, JJ., concur; DEYO, J., dissents and votes to affirm on the authority of Matter of Wheeler v. Curran (274 A.D. 911).

          Order insofar as appealed from reversed, on the law and the facts, without costs, and application denied.