Notaro v. Lawley

Order unanimously affirmed, without costs. Memorandum: Petitioner appeals from an order at Special Term dismissing his order to show cause why the designating petitions of one Matthew Gooding should not be declared invalid. The order to show cause was dismissed for lack of jurisdiction on the ground that petitioner failed to serve respondent properly within the time required by subdivision 1 of section 330 of the Election Law. Although service by mail was authorized by the show cause order, evidence that it was mailed on June 1, the last day within which to institute the proceeding, is not sufficient to satisfy the statutory requirement/ which has been construed to call for the delivery of the instrument of notice not later than the last day on which the proceeding may be commenced (Matter of King v. Cohen, 293 N. Y. 435, 439; Matter of Manz v. Lawley, 21 A D 2d 750). The proceeding not having been brought within the time limited by statute, the order should be affirmed (Matter of Ullman v. Power, 36 Misc 2d 1015, affd. 17 A D 2d 792, affd. 12 N Y 2d 724; Matter of Rosenberg v. Cohen, 293 N. Y. 770). (Appeal from part of order 1014 of Erie Special Term dismissing proceeding brought under section 330 of the Election Law to declare invalid certain designating petitions.) Present•— Goldman, P. J., Witmer,- Cardamone and Henry, JJ. (Order entered June 13, 1972.)