Schutrick v. Westchester County Board of Elections

96 A.D.2d 921, 465 N.Y.S.2d 948, 1983 N.Y. App. Div. LEXIS 19555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 24, 1983
• Status: Published

Opinion

— In a proceeding to validate a petition designating Thomas Schutrick as a candidate in the Republican Party primary election to be held on September 13, 1983, for the office of Councilman of the Town of Cortlandt, Thomas Schutrick appeals from so much of a judgment of the Supreme Court, Westchester County (Coppola, J.), entered August 17,1983, as dismissed the application on the merits, and Victor Coster cross-appeals from so much of the judgment as denied his motion to dismiss the application on jurisdictional grounds. Cross appeal dismissed, without costs or disbursements. Coster is not aggrieved by the judgment (CPLR 5511). The issues raised by the cross appeal are brought up for review and have been considered on petitioner-appellant’s appeal (CPLR 5501, subd [al). Judgment affirmed, without costs or disbursements. While Special Term correctly dismissed the application we find that it should have done so upon jurisdictional grounds rather than on the merits and that the merits should not have been reached. Petitioner’s failure to name and serve objector Victor Coster as a party to the proceeding was a jurisdictional defect which mandates dismissal (Matter of Wein v Molinari, 51 NY2d 717; Matter ofGadsen v Board of Elections of City of N. Y., 57 NY2d 751). Mangano, J. P., Thompson, Niehoff and Boyers, JJ., concur.