I dissent and vote to reverse the judgment and tó remit the proceeding to the Special Term for a determination consistent with the views expressed herein.
I do not agree with the way the majority applies section 43 of the Second Class Cities Law to the facts of this case. Section 43 provides that unless the Common Council, by a two-thirds vote, determines to designate only one official paper, it ‘ ‘ shall designate two official papers, of opposite political faith, and of which at least one shall be a daily newspaper, and each member shall be entitled to vote for but one paper, and the two papers havimg the highest number of votes shall be the official papers for two years and until a successor or successors shall be be designated ” (emphasis mine).
The Yonkers Common Council, at its organizational meeting in January, 1968, designated the petitioner’s paper, the Home News and Times, a weekly, and the Herald-Statesman as the city’s official newspapers. Two years later, at its organizational meeting in January, 1970, upon advice from the Corporation Counsel, the Common Council redesignated the Herald-Statesman as one of the two official papers without casting any votes for it. I believe that such action ignores section 43, which states that the two papers ‘ ‘ having the highest number of votes ’ ’ shall be the official papers..
The reason given for not voting for the Herald-Statesman was that it was the only daily paper in the city and that, since one of the two official papers must be a daily, it would be “ useless ” for the Council members to formally vote for it. I cannot agree.
The intent of the statute is clearly to have each Council member vote for one paper. This, as was noted almost 70 years ago in People ex rel. Argus Co. v. Bresler (171 N. Y. 302, 309), is to provide for the selection of an official newspaper by a minority of the Council. Here the minority had no voice in the selection. I am sure the Legislature was aware that many cities throughout *247the State, like Yonkers, might have only one daily newspaper. I see nothing in section 43 to suggest that in such a case the wording of the statute was to be ignored.
As I read it, section 43 requires the Council members to designate their papers by formal vote. If, after voting, the statute is not satisfied, i.e., one of the two papers receiving the highest number of votes is not a daily, then another vote must be taken. This is precisely how the minority’s voice is protected. If the Council members are adamant and refuse to change their votes to satisfy the statute, then no valid new designation is made and the newspapers designated at the prior organizational meeting continue as the official papers.
At bar, the designation was void because it failed to follow section 43. Accordingly, the papers designated in 1968, namely, the Home News and Times and the Herald-Statesman, are the official papers and continue as such ‘ ‘ until a successor or successors shall be designated ”.
Gulotta, Christ and Benjamin, JJ., concur with Shapiro, J.; Munder, Acting P. J., dissents and votes to reverse the judgment and to remit the proceeding to the Special Term for a determination consistent with the views expressed in his dissenting opinion.
Judgment affirmed, with costs.