(dissenting). It is a foregone conclusion that Mr. Wiltse will be elected to the office of District Attorney. He is a candidate of the Bepublican, the Democratic and the Liberal parties and has no opponent. If he is also elected to the office of County Judge, he can not hold both offices. The offices are incompatible. Section 411 of the County Law provides: “No county judge, special county judge, children’s court judge, surrogate, special surrogate, district attorney, sheriff, county clerk or any elective county officer shall be eligible to hold at the same time any other elective county or town office, or that of city supervisor.”
To say that although one may not hold both offices simultaneously, nevertheless he may be a candidate for both offices at the same election, is, I believe, contrary to the spirit and intent of the Election Law. Although the candidate possesses all of the qualifications for either office, the nomination for one of such offices, unless declined within the time permitted by statute, disqualifies him for the other. Otherwise the action of the voters at the general election fails of its purpose. An election dependent upon the expectation that the candidate wall qualify for only one office is not final or certain. In any event, one office voted for will remain vacant. The Election Law, as I view it, contemplates that elections shall be final and not contingent upon some future event or act of the person voted for. (See People v. Purdy, 154 N. Y. 439, 442, 443.)
*39All concur in Per Curiam opinion, except McCtjrn, J., who dissents and votes for affirmance, in a separate opinion. Present — Taylor, P. J., McCurn, Vaughan, Piper and Wheeler, JJ.
Order in all respects reversed on the law and proceeding dismissed, without costs of this appeal to any party.