Summary
In King v. McNab, 221 N.Y.S.2d 185, 14 A.D.2d 808 (1961) the court found that the failure to specify whether the candidate sought one position as councilman for a full four-year term, or whether he sought the other position, which was to fill an unexpired two-year term, was fatally defective.
Summary of this case from Opinion No. 1990-171Opinion
October 26, 1961
In a proceeding under section 330 of the Election Law by petitioner King, to annul the determination of the Board of Elections of Suffolk County rejecting the petition nominating him as a candidate of the Independent Progressive party for the office of Councilman in the Town of Southold; and in a counter proceeding by petitioners Demarest and Grathwohl, rival candidates who had filed objections before the board to such nominating petition, to confirm the board's determination, said objectors Demarest and Grathwohl appeal from an order of the Supreme Court, Suffolk County, entered October 20, 1961, upon the decision of the court after a nonjury trial, which: (a) dismissed their petition, (b) granted the King petition, (c) annulled the board's determination, and (d) directed the board to accept said nominating petition and to place King's name on the ballot as a candidate of said party for the public office of Councilman for a four-year term. Order reversed on the law, petition of King dismissed, petition of Demarest and Grathwohl granted, and determination of the Board of Elections confirmed, without costs. The findings of fact contained in the Special Term decision are affirmed. Appellants Demarest and Grathwohl, as objectors to the petition nominating King, were necessary parties to the first proceeding. Since the petitioner King failed to join them as parties thereto, the court lacked jurisdiction to make any order affecting the nominating petition ( Matter of Swan v. Cohen, 286 N.Y. 678). It cannot be said that the objectors waived this jurisdictional defect. On the contrary, they affirmatively urged it when they interposed a special appearance in the King proceeding and moved to dismiss it on the ground that they were indispensable parties and had not been served with process. It is also our opinion that, in any event, the nominating petition was defective on its face and that the defect was of such a vital character that it could not be cured by amendment. There were two vacant public offices for Councilmen in the Town of Southold: one for a full four-year term, and one for an unexpired term of two years. The nominating petition failed to set forth whether King's nomination was for one office or the other; he was simply nominated for the office of Councilman. While there is no statutory requirement that the term of any office be stated, nevertheless under the unusual circumstances here — where two identical offices are to be filled but for different terms — a nominating petition which fails to state for which one of the two offices the candidate has been nominated, is fatally defective. Such a defect is not one which can be cured by the filing of a correction certificate by the committee on vacancies. For to permit the committee to make such a correction would be tantamount to empowering it to actually select in the first instance the particular public office for which the candidate shall be nominated. It was never the intent of the Election Law to permit a committee on vacancies to select retroactively the particular public office for which a candidate shall be nominated. Beldock, Christ and Pette, JJ., concur; Nolan, P.J. and Ughetta, J., dissent and vote to affirm the order.