Mason v. Tapel

Appellate Division of the Supreme Court of New York

Mason v. Tapel

71 A.D.2d 1050, 420 N.Y.S.2d 802, 1979 N.Y. App. Div. LEXIS 13424

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 21, 1979

StatusPublished

Cited by3 cases

This text of 71 A.D.2d 1050 (Mason v. Tapel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mason v. Tapel, 71 A.D.2d 1050, 420 N.Y.S.2d 802, 1979 N.Y. App. Div. LEXIS 13424 (N.Y. Ct. App. 1979).

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Opinion

Order unanimously affirmed, without costs. Memorandum: Alleging malfunctioning of the voting machines and other irregularities in the Village of North Syracuse general election for Mayor and two trustees held on June 19, 1979, petitioners brought a proceeding under articles 15 and 16 of the Election Law, seeking to have the election set aside and a new general election ordered. Special Term dismissed the petition for lack of jurisdiction. On appeal petitioners contend that the court may entertain the petition pursuant to the provisions of section 15-138 of the Election Law. We disagree. The history of that section (see Village Law, § 4-432, L 1964, ch 740; Election Law, § 536, L 1972, ch 895, § 2; L 1972, ch 895, § 3) and such expression of legislative intent as is available (see 1972 McKinney’s Session Laws of New York, p 3409) demonstrates that section 15-138 is merely a recodification of prior law. Since section 15-138 was not intended to create an enlargement of the summary jurisdiction of Supreme Court over general elections, there is no jurisdiction to grant the summary relief demanded (Matter of Hogan v Supreme Ct. of State of N. Y., 281 NY 572; see Matter of Quinn v Kehoe, 61 Mise 2d 392; Election Law, art 16). Relying upon this court’s decision in Dekdebrun v Hardt (68 AD2d 241), petitioners further argue that the proceeding should be converted into an action for declaratory judgment, thus permitting review on the merits. Dekdebrun is inapposite, however, since there is no showing here that the Attorney-General has delayed or refused to act in a quo warranto proceeding (Executive Law, § 63-b). Further, in Dekdebrun it was not asserted at Special Term as it was here that quo warranto was the appropriate remedy. The proper and traditional remedy for the relief sought by petitioners here is quo warranto (Matter of Corrigan v Board of Elections of Suffolk County, 38 AD2d 825, affd 30NY2d 603). (Appeal from order of Onondaga Supreme Court—Election Law.) Present—Dillon, P. J., Hancock, Jr., Doerr and Witmer, JJ.

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Order unanimously affirmed, without costs. Memorandum: Alleging malfunctioning of the voting machines and other irregularities in the Village of North Syracuse general election for Mayor and two trustees held on June 19, 1979, petitioners brought a proceeding under articles 15 and 16 of the Election Law, seeking to have the election set aside and a new general election ordered. Special Term dismissed the petition for lack of jurisdiction. On appeal petitioners contend that the court may entertain the petition pursuant to the provisions of section 15-138 of the Election Law. We disagree. The history of that section (see Village Law, § 4-432, L 1964, ch 740; Election Law, § 536, L 1972, ch 895, § 2; L 1972, ch 895, § 3) and such expression of legislative intent as is available (see 1972 McKinney’s Session Laws of New York, p 3409) demonstrates that section 15-138 is merely a recodification of prior law. Since section 15-138 was not intended to create an enlargement of the summary jurisdiction of Supreme Court over general elections, there is no jurisdiction to grant the summary relief demanded (Matter of Hogan v Supreme Ct. of State of N. Y., 281 NY 572; see Matter of Quinn v Kehoe, 61 Mise 2d 392; Election Law, art 16). Relying upon this court’s decision in Dekdebrun v Hardt (68 AD2d 241), petitioners further argue that the proceeding should be converted into an action for declaratory judgment, thus permitting review on the merits. Dekdebrun is inapposite, however, since there is no showing here that the Attorney-General has delayed or refused to act in a quo warranto proceeding (Executive Law, § 63-b). Further, in Dekdebrun it was not asserted at Special Term as it was here that quo warranto was the appropriate remedy. The proper and traditional remedy for the relief sought by petitioners here is quo warranto (Matter of Corrigan v Board of Elections of Suffolk County, 38 AD2d 825, affd 30NY2d 603). (Appeal from order of Onondaga Supreme Court—Election Law.) Present—Dillon, P. J., Hancock, Jr., Doerr and Witmer, JJ.

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71 A.D.2d 1050, 420 N.Y.S.2d 802, 1979 N.Y. App. Div. LEXIS 13424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-tapel-nyappdiv-1979.

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