Opinion
October 22, 1945.
Order affirmed, without costs. Leave to appeal to the Court of Appeals is hereby granted. The nominating petition has been held to be invalid as not complying with the requirements of the Election Law. The sole contention of the appellant is that petitioner had no right to maintain this proceeding to challenge the invalidity of the nominating petition. In Matter of Gaberman v. Cohen ( 293 N.Y. 771, affg. 268 App. Div. 833) the Court of Appeals decided that the petitioner therein had a standing to maintain the proceeding, contrary to the majority view of this court. This disposition was in accord with Matter of Bergen ( Kiernan) ( 262 N.Y. 716). Jurisdiction was the primary question. It is fundamental that merits may not be adjudicated until jurisdiction is decided. The petition was dismissed in the Gaberman proceeding ( supra) on the ground that it was not brought within the time limited by statute. That question would not have been reached if petitioner had no standing to maintain the proceeding. Therefore, as the Court of Appeals has taken a view contrary to that of the majority of this court in the Gaberman case ( supra), we are bound to hold that the petitioner here had a right to maintain this proceeding. Carswell, Johnston and Lewis, JJ., concur; Close, P.J., concurs on the ground stated by him in his dissenting memorandum in Matter of Gaberman v. Cohen ( 268 App. Div. 833); Hagarty, J., not voting. [ 185 Misc. 746. ]