(dissenting). Because we find few situations to which the doctrine of estoppel is more apt than the case at hand, we dissent. This case is not about whether the NY Constitution provides for a four-year term of office for a Town Justice elected to fill a vacancy. Rather, it is about whether a candidate who presents himself to the voters on his designating and nominating petitions as running for a “2-Year Term” is estopped from asserting such a constitutional provision, even assuming that the Constitution should be so construed. Noticeably absent from the pleadings is any assertion by petitioner that in 1997 he believed, or more importantly represented to the electors of his township, that he was running for a full four-year term of office. The obvious import of the language contained on the petitions is that he himself believed his term was only two years. If the sanctity of the votes cast at that election is to be preserved, NY Constitution, article VI, § 17 (d) should not be invoked post facto to achieve a different result.
The cases relied upon by the majority to negate estoppel all involve governmental action purporting to limit a constitutional office and are therefore distinguishable. The petitions in this record whereby petitioner sought nomination and designation as a candidate for a “2-Year Term”, and the ballot at the ensuing election in which he was listed as a candidate “To Fill [a] Vacancy”, lead to the inescapable conclusion that he (and the voters) believed he was running for a two-year term.* To hold differently two years later would, in our mind, work an obvious injustice to those voters. In our view, requiring petitioner to adhere to the office he himself sought does not violate any discernable public policy (see, Salla v County of Monroe, 64 AD2d 437, 442, affd 48 NY2d 514, cert denied 446 US 909).
Furthermore, even the ballot format presented to the voters *785was inconsistent with a term of office coterminous with the other Town judgship that appeared on the ballot due to the expiration of that term of office. Election Law § 7-108 (3) mandates that where two or more candidates for the same office or position are on a ballot, the “instruction on the ballot or machine shall read ‘Vote for any_’, (the blank space to be filled with the number of persons to be nominated for the office or elected to the position)”. But the voters did not receive such an instruction in this case. Instead, the ballot conformed to the format which is only appropriate when two or more candidates seek the same office for different terms. In such an instance, Election Law § 7-108 (2) provides that “the term for which each is nominated shall be printed as a part of the title of the office”. Here, the ballot clearly differentiated between the two judgeships by denoting that the office sought by petitioner was “To Fill [a] Vacancy” and the voters were limited to “Vote for One”.
For the foregoing reasons, we would reverse Supreme Court’s judgment and dismiss the petition.
Graffeo, J., concurs. Ordered that the judgment is affirmed, without costs.
This case is also distinguishable from Dillon v Shaffer (144 Misc 2d 1079) relied upon by petitioner. In that case “both plaintiffs designating petitions and the election ballots were completely devoid of any language regarding the duration of the term” (id., at 1083) and the term of office of a full four years was fixed by the County Clerk before the election. This latter factor also distinguishes the case at bar from Tinkham v Tioga County Bd. of Elections (Sup Ct, Tioga County, May 22, 1997, Rose, J.).