In the Matter of the Application of John E. Preston and Another, Appellants, for an Order Directing the Clerk of the Village of Cornwall to File the Petition for Their Independent Nomination for the Office of Trustees, etc. The Clerk and Board of Trustees of the Village of Cornwall, N. Y., Respondents

In the Matter of the Application of John E. Preston and Another, Appellants, for an Order Directing the Clerk of the Village of Cornwall to File the Petition for Their Independent Nomination for the Office of Trustees, etc. The Clerk and Board of Trustees of the Village of Cornwall, N. Y., Respondents. [MAJORITY] Order denying application to file independent nominating petition and to print names on the official ballot for the ensuing annual village election is reversed on the law, and the motion granted. We agree with the holding of the court at Special Term that the effect of the Appellate Division decision [Abell v. Hunter, 211 App. Div. 467] is to restore the annexation and to leave all the parties where they were when the certiorari proceeding was commenced, and the greater village must be deemed to exist unless, in the certiorari proceeding, the consolidation or annexation proceeding shall be declared to have been illegal and ineffective. In our opinion the pending appeal to the Court of Appeals does not operate as a statutory stay. (New York Mail & Newspaper Trans. Co. v. Shea, 30 App. Div. 374; Sixth Avenue R. R. Co. v. Gilbert Elevated R. R. Co., 71 N. Y. 430; Genet v. President, etc., D. & H. C. Co., 113 id. 472.) Kelly, P. J., Jaycox, Kelby and Kapper, JJ., concur; Manning, J., dissents. Settle order on notice.