In re the Objections to Petitions of Electors of Newburgh

Willard Bartlett, J. :

I think we ought to dismiss this appeal. The proceeding appears to have been instituted by a petition and affidavit upon which an order was granted returnable before a Special Term of the Supreme Court, requiring the town clerk of the town of Newburgh to show cause why certain petitions filed with him relative to the submission of certain local option questions under the Liquor Tax Law* should not be declared invalid, and why the same should not be set aside, and why he should not be restrained from printing ballots for the submission of the questions aforesaid. The application was of a summary nature, and it appears to have been supposed that there was jurisdiction to entertain it either on the part of the Supreme Court or a justice thereof, under sections 56 and 65 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 654). An examination of these sections, however, shows that they have no reference whatever to petitions or other proceedings under the Liquor Tax Law, but that they relate solely to certificates of nomination under the provisions of the Election Law. The attempt to bring questions concerning the local option provisions of the Liquor Tax Law before the court by a summary proceeding under sections 56 and 65 of the Election Law appears to me to have been wholly without authority. The court below, therefore, possessed no jurisdiction to pass one way or the other upon the sufficiency of the petitions. It would have been different in an injunction suit by a taxpayer to restrain action by the town clerk; but such was not the nature of this proceeding. Inasmuch as the-'dourt at Special Term possessed no jurisdiction, I think the proper course for this court is neither to affirm nor reverse its decision, but to dismiss the appeal.

All concurred (Hooker, J., in separate memorandum).

* See statute cited in opinion of Hooker, J., post, page 440.— [Rep.