Opinion
October 6, 1970
In a proceeding pursuant to section 330 of the Election Law and article 78 of the CPLR (1) to restrain respondents Commissioners of Election from accepting and filing a certificate of nomination of respondent-appellant, James P. Rice, as the candidate of the Republican Party for the public office of County Legislator of the County of Rockland from the Town of Ramapo, etc., and (2) to direct respondent County Legislature of the County of Rockland to rescind its resolution purporting to seat respondent-appellant as the interim appointee for said public office of County Legislator, etc., petitioners appeal from a judgment of the Supreme Court, Rockland County, entered September 22, 1970, which denied the application, declared respondent-appellant ineligible to hold the office of Mayor of the Village of Suffern, declared the latter office vacant, directed that a successor may be appointed, and stayed removal of respondent-appellant from that office for 15 days, etc.; and respondent-appellant appeals from so much of the judgment as declared him ineligible to hold said office of Mayor, declared that office vacant, and directed that an appointment to fill the vacancy may be made forthwith. Judgment modified, on the law, by striking therefrom the third and fourth decretal paragraphs, which declared respondent-appellant ineligible to hold the office of Mayor, declared that office vacant, and directed that a successor may be appointed. As so modified, judgment affirmed, without costs. Two causes of action are stated in the petition. The first cause, under section 330 of the Election Law, seeks relief against respondents Commissioners of Election in that the nomination of respondent-appellant, Rice, for County Legislator is void on the ground that Rice, as Mayor of the Village of Suffern, is ineligible to hold the office of County Legislator. We agree with the Special Term that Rice may be candidate for the office of County Legislator. The second cause of action, under article 78 of the CPLR, alleges that Rice, while Mayor of the Village of Suffern, was appointed as County Legislator on an interim basis to fill an existing vacancy, and seeks a judgment directing the County Legislature to rescind the appointment and to remove Rice from office, and declaring the office of County Legislator to be vacant. However, the Special Term did not grant that relief, but instead declared that Rice was not eligible to hold the office of Mayor of the Village of Suffern and that a successor may at once be appointed. Thus, the Special Term granted relief which petitioners did not seek. This, we think, was beyond its jurisdiction. Ordinarily, a proceeding under article 78 of the CPLR should not be joined with a proceeding under section 330 of the Election Law. The latter proceeding must be tried and determined summarily, as the statute directs (Election Law, § 335). The joinder of the article 78 proceeding may well impede the speedy disposition of the issues under the Election Law. In this case, the eligibility of Rice as a candidate was an issue which called for swift action in view of the impending election. However, the question of Rice's present title to the office of Mayor of the Village of Suffern should not be decided summarily in an article 78 proceeding (cf. Matter of Ahern v. Board of Supervisors of County of Suffolk, 7 A.D.2d 538, affd. 6 N.Y.2d 376; Matter of Teeple v. Mc Keon, 273 App. Div. 936). Hence, it was improper under the circumstances of this case to remove Rice as Mayor, particularly in the light of the fact that neither petitioner is a resident of the village. Rabin, Acting P.J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.