Opinion
August 2, 1943.
Present — Crosby, P.J., Cunningham, Taylor, Harris and McCurn, JJ.
Order reversed on the law and proceeding dismissed, without costs of this appeal to any party, on the ground that the proceeding was not instituted within the time prescribed by subdivision 1 of section 330 of the Election Law, which provision is mandatory. (See Matter of Tombini, 262 App. Div. 956, affg. 177 Misc. 148.) All concur, except Cunningham and Harris, JJ., who dissent and vote for affirmance on the ground that the effect of this decision is to perpetuate a fraud, as to the perpetration of which fraud there is not any dispute. (The order directs the Board of Elections to accept for filing certificates of nomination of certain persons as candidates for offices on the American Labor Party ticket, and strikes from the designating petition names designated as members of the committee to fill vacancies.)