Opinion
November 5, 1951.
Proceeding pursuant to article 78 of the Civil Practice Act for an adjudication that respondent Mazzotti is ineligible to hold office as village trustee and that petitioner is a holdover. Order, on reargument, dismissing petition reversed on the law, without costs, and application of petitioner granted, without costs, and it is ordered that respondent Mazzotti be restrained from acting as village trustee as the result of an alleged election on March 20, 1951; and it is adjudged that petitioner is an incumbent and entitled to hold office as trustee until such time as a duly qualified successor assumes the office. The facts set forth in the petition and reply, which are evidenced by the annexed exhibits relating to the public records, are admitted by the respondents. They establish the ineligibility of respondent Mazzotti for the reason that he was not a village property owner of record at the time of the election. (Village Law, § 42; Matter of Mapes v. Swezey, 278 App. Div. 959.) The vacancy arising from Mazzotti's ineligibility made petitioner the incumbent as a holdover, there being no other, until a duly qualified successor is chosen and assumes office. ( People ex rel. Stalter v. Lynch, 219 App. Div. 1, 5, affd. 245 N.Y. 534. ) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.