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Matter of Mason v. Tapel

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 21, 1979
71 A.D.2d 1050 (N.Y. App. Div. 1979)

Opinion

September 21, 1979

Appeal from the Onondaga Supreme Court.

Present — Dillon, P.J., Hancock, Jr., Doerr and Witmer, JJ.


Order unanimously affirmed, without costs. Memorandum: Alleging malfunctioning of the voting machines and other irregularities in the Village of North Syracuse general election for Mayor and two trustees held on June 19, 1979, petitioners brought a proceeding under articles 15 and 16 of the Election Law, seeking to have the election set aside and a new general election ordered. Special Term dismissed the petition for lack of jurisdiction. On appeal petitioners contend that the court may entertain the petition pursuant to the provisions of section 15-138 Elec. of the Election Law. We disagree. The history of that section (see Village Law, § 4-432, L 1964, ch 740; Election Law, § 536, L 1972, ch 895, § 2; L 1972, ch 895, § 3) and such expression of legislative intent as is available (see 1972 McKinney's Session Laws of New York, p 3409) demonstrates that section 15-138 is merely a recodification of prior law. Since section 15-138 was not intended to create an enlargement of the summary jurisdiction of Supreme Court over general elections, there is no jurisdiction to grant the summary relief demanded (Matter of Hogan v. Supreme Ct. of State of N Y, 281 N.Y. 572; see Matter of Quinn v. Kehoe, 61 Misc.2d 392; Election Law, art 16). Relying upon this court's decision in Dekdebrun v. Hardt ( 68 A.D.2d 241), petitioners further argue that the proceeding should be converted into an action for declaratory judgment, thus permitting review on the merits. Dekdebrun is inapposite, however, since there is no showing here that the Attorney-General has delayed or refused to act in a quo warranto proceeding (Executive Law, § 63-b). Further, in Dekdebrun it was not asserted at Special Term as it was here that quo warranto was the appropriate remedy. The proper and traditional remedy for the relief sought by petitioners here is quo warranto (Matter of Corrigan v. Board of Elections of Suffolk County, 38 A.D.2d 825, affd 30 N.Y.2d 603).


Summaries of

Matter of Mason v. Tapel

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 21, 1979
71 A.D.2d 1050 (N.Y. App. Div. 1979)
Case details for

Matter of Mason v. Tapel

Case Details

Full title:In the Matter of FLOYD MASON et al., Appellants, v. FREDERICK TAPEL…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 21, 1979

Citations

71 A.D.2d 1050 (N.Y. App. Div. 1979)

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