Opinion
Argued October 15, 1982
Decided October 15, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HAROLD TOMPKINS, J.
James J. Leff, appellant pro se. Frederick A.O. Schwarz, Jr., Corporation Counsel ( Leonard Koerner of counsel), for Board of Elections of the City of New York, respondent.
Victor Herwitz, respondent pro se, and for Jack Rosenberg, respondent.
Herbert Rubin for Harold Baer, Jr., and others, respondents.
Peter C. Hein for intervenors-respondents.
Order affirmed, without costs (see Matter of Gammerman v Board of Elections of City of N.Y., 57 N.Y.2d 888, decided herewith).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER. Judge FUCHSBERG dissents and votes to reverse in the following memorandum: The drastic result in this case is the consequence of the harsh rule this court enunciated in such cases as Matter of Rutter v Coveney ( 38 N.Y.2d 993) and Matter of Higby v Mahoney ( 48 N.Y.2d 15). Reiterating the views I expressed in those cases, I would find an exception for the extraordinary circumstances which confront us now and reverse.