Opinion
October 16, 1967
In this proceeding pursuant to section 330 of the Election Law to declare valid the independent nominating petition of the Huntington Taxpayers party, in which petitioners were designated as candidates for certain offices in the Town of Huntington at the general election to be held on November 7, 1967, respondent Hartnett, an objectant to said nominating petition, appeals from a judgment of the Supreme Court, Suffolk County, dated October 3, 1967, which (1) granted petitioners' motion to withdraw their petition in this proceeding, (2) denied said respondent's cross motion to declare said nominating petition invalid and (3) dismissed said respondent's answer to the petition in this proceeding. Judgment affirmed, without costs. Leave to appeal to the Court of Appeals granted. On September 11, 1967 an independent nominating petition of the Huntington Taxpayers party was filed with the Suffolk County Board of Elections. On September 14 appellant (an enrolled voter of the Town of Huntington) filed general objections to the petition. Prior to action by the Board of Elections and on September 18 petitioners (candidates of the Huntington Taxpayers party for public office in the Town of Huntington) commenced this proceeding under section 330 of the Election Law to validate the nominating petition. On September 21 appellant filed specifications of his objections. On September 22 (a) the Board of Elections determined that the nominating petition was valid and (b) appellant served on the attorney for petitioners an answer containing a counterclaim and cross claim, together with a notice of cross motion to invalidate the petition. On September 26 (the return date of the order to show cause instituting petitioners' proceeding) petitioners moved to withdraw the proceeding as academic in view of the September 22 action of the Board of Elections. The last day to file independent nominating petitions was September 11, 1967. The last day to institute a proceeding with respect to such nominating petition was September 25, 1967 (Election Law, § 330, subd. 1). Section 335 of the Election Law provides that such a special proceeding must be instituted upon a verified petition and upon such notice to such officers, persons, or committees as the court, Justice or Judge shall direct. In our opinion, the service of the notice of cross motion on September 22, 1967 was insufficient to institute a proceeding under section 330 because it was not a verified petition ( Matter of Tuomey v. Cohen, 296 N.Y. 628) and because it was not served upon such officers, persons or committees as the court, Justice or Judge shall direct. Christ, Brennan, Rabin and Hopkins, JJ., concur; Beldock, P.J., concurs in granting leave to appeal to the Court of Appeals, but otherwise dissents and votes to reverse the judgment and to grant leave to petitioners to reply to the answer, with the following memorandum: In my opinion, the service by appellant upon the attorney for petitioners, within the statutory period, of the notice of cross motion and the answer to the petition, wherein appellant demanded affirmative relief, entitled him to an adjudication on the merits. This right to such adjudication, by virtue of the joinder of issue and the nature of the pleadings before the court, could not be destroyed by petitioners' unilateral action in moving to withdraw the petition to the prejudice of appellant. In light of the changes made by the Civil Practice Law and Rules, particularly with respect to the liberalization of practice in special proceedings (CPLR 402), it is my view that Matter of Tuomey v. Cohen ( 296 N.Y. 628), which was decided under the former Civil Practice Act, is distinguishable and may no longer be deemed controlling.