Lohmaier v. Ulster County Bd. of Elections
| Decision Date | 30 December 1975 |
| Parties | In the Matter of Joseph LOHMAIER et al., Appellants, v. ULSTER COUNTY BOARD OF ELECTIONS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Seymour Werbalowsky, Kingston, for appellants.
Ewig, Klein & Klein, Kingston (Louis M. Klein, Kingston, of counsel), for respondent-appellant Robert Mitchell.
Abram Molyneaux, Kingston, for respondent Ulster County Bd. of Elections.
Before GREENBLOTT, J.P., and SWEENEY, MAIN, LARKIN and REYNOLDS, JJ.
Cross-appeals from a judgment of the Supreme Court at Special Term, entered December 12, 1975 in Ulster County, which, in a proceeding pursuant to subdivision 4 of section 330 of the Election Law, granted certain items of relief sought in the petition and denied others and further denied a motion to dismiss the petition for lack of jurisdiction.
We hold that the motion to dismiss should have been granted. It is not disputed that the victorious candidate in the challenged election herein was not properly served within the 20-day time limit of subdivision 4 of section 330 of the Election Law. Since he was a necessary party to the proceeding, this defect is noncurable, and the petition must be dismissed. (Matter of Ullman v. Power, 17 A.D.2d 792, 232 N.Y.S.2d 711, affd. 12 N.Y.2d 724, 233 N.Y.S.2d 774, 186 N.E.2d 129; Matter of Suthergreen v. Westall, 6 A.D.2d 1014, 178 N.Y.S.2d 546.)
Judgment reversed, on the law, and petition dismissed without costs.
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