The parties having agreed in open court that this appeal may be decided by a court of four justices, the decision is as follows: Order denying petitioner’s motion for a peremptory mandamus order to direct the board of elections to hold a new drawing to determine the position of candidates for the public office of district attorney, Queens county, on the ballot for the primary election to be held on September 17, 1935, affirmed, without costs, in the exercise of discretion. It appears by affidavits submitted by the board of elections that it will be a physical impossibility for the board to have the ballots to be used in Queens county — Democratic party — ready for use on primary day if the court should reverse the order herein and direct a redrawing and upon such redrawing there should be a change in position of the two candidates. H the ballots were not ready, there would be a disfranchisement of the Democratic electors, not only for the position herein involved, but for all other offices for which nominations are to be made in that county. The good faith of the board of elections in its representation to the court of inability to have the ballots ready if the ballot were changed is not questioned. Under these circumstances, and since the harm to the appellant would be slight and the possible loss to electors very serious, without considering the merits the court is of the opinion that the order should be affirmed pursuant to the provisions of section 330 of the Election Law, that the court shall make such order as justice may require. Lazansky, P. J., Young, Tompkins and Johnston, JJ., concur.