(dissenting). Article IV, section 1, of the Constitution provides: ‘1 The executive power shall be vested in the governor, who shall hold his office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term. The governor and lieutenant-governor shall be chosen at the general election held in the year nineteen hundred thirty-eight, and each fourth year thereafter.”
Section 5 provides: “ In. case of impeachment of the governor or his removal from office, death, inability to discharge the powers and duties of the office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease.”
Section 6 of the same article provides: ‘ ‘ The lieutenant-governor shall possess the same qualifications and eligibility for office as the governor. He shall be president of the senate but shall have only a casting vote therein. If the office of governor become vacant and there be no lieutenant-governor, such vacancy shall be filled for the remainder of the term at the next general .election happening not less than three months after such vacancy occurs; and in such case, until the vacancy be filled by election, or in case the lieutenant-governor be under impeachment or unable to discharge the powers and duties of the office of governor or' shall be absent from the state, the temporary president of the senate shall act as governor during such inability, absence or the pendency of such impeachment.”
The provisions of section 1 of this article IV of the Constitution contain the only provision for the election of Lieutenant-*528Governor found in the Constitution, and it clearly provides that he shall be chosen at the general election held in the year 1938 and each fourth year thereafter. There is no provision in the Constitution or in any law for filling the office of Lieutenant-Governor at any general election.
Section 42 of the Public Officers Law provides: “ 1. A vacancy occurring before October fifteenth of any year in any office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election. ’ ’
The office of the Lieutenant-Governor by the Constitution cannot be filled at any general election. It is clearly provided by section 1 of article IV" that the election at which he shall be chosen was first held in the year 1938 and each fourth year thereafter, so that the provisions of subdivision 1 of section 42 of the Public Officers Law do not apply to the filling of the office of Lieutenant-Governor because it is otherwise provided by the Constitution and there can be an election for Lieutenant-Governor only once in four years at the time the Governor is elected.
Subdivision 3 of section 42 of the Public Officers Law says: “ Upon the failure to elect to any office, except that of governor or lieutenant-governor, ” which clearly indicates that the provisions of section 42 of the Public Officers Law do not apply to Lieutenant-Governor because the Constitution provides differently and does not permit his election in any year in which there is a general election.
Mandamus is an extraordinary legal remedy which can only be granted to enforce a clear legal right. The petitioner has failed to show any clear legal right to have an election of Lieutenant-Governor at any general election. A Lieutenant-Governor was elected in 1938, and another Lieutenant-Governor was elected in the election of 1942, and under section 1 of article IV of the Constitution there cannot be another election of Lieutenant-Governor until 1946.
The order appealed from should be reversed.
Hill, P. J., Bliss, Heffernan and Schenck, JJ., concur in Per Curiam opinion; Crapser, J., dissents in opinion.
Order affirmed without costs.