Rivera v. Northrup

26 A.D.2d 612, 271 N.Y.S.2d 443, 1966 N.Y. App. Div. LEXIS 3969

Opinion

Judgment unanimously reversed, without costs, and application denied. Memorandum: Relief may be granted in the nature of mandamus to compel the performance of ministerial acts by Commissioners of Election pursuant to article 78 of CPLR. Included in such ministerial acts is the clerical determination by the Commissioners as to whether petitions have been signed by a sufficient number of qualified voters. (Cf. Matter of Mansfield v. Epstein, 5 N Y 2d 70, 73.) In the instant case petitioners seek to invalidate petitions that require the determination of issues of fact such as are ordinarily raised by claims of fraud. (Cf. Matter of Bednarsh v. Cohen, 267 App. Div. 133, 135.) This may only be done in a proceeding under section 330 of the Election Law and the time limit (June 8, 1966) therein stated is controlling. It follows the proceeding was not timely commenced. We do not reach or pass upon the merits of the proceeding. (Appeal from judgment of Monroe Special Term granting the petition.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.