Opinion
October, 1930.
Appeal from an order.
Present — Sears, P.J., Crouch, Taylor, Edgcomb and Thompson, JJ. Order affirmed, without costs of this appeal to either party.
The petitioner in this proceeding is seeking to have his name removed from the ballot as the nominee of the Democratic party for the office of member of Congress in the forty-first district. After his nomination at the primary he filed a declination and shows that he was out of the country at the time the original designating petitions were filed and until after the time for declining the designation had expired. It has been said in such cases as this that a legislative remedy must be found to authorize relief. ( Matter of Neary v. Voorhis, 207 App. Div. 419. ) We have searched the Election Law in vain for any legislative enactment which would authorize the granting of the relief sought by the petitioner. In fact, the right to file a declination of nomination in such a case as is here involved is expressly denied by the statute. (Election Law, § 138.) All concur.
Amd. by Laws of 1929, chap. 712. — [REP.