In the Matter of S. Jeffrey Butler, Appellant, v. Albert T. Hayduk et al., Constituting the Board of Elections in the County of Westchester, Respondents

(August 27, 1975) In the Matter of S. Jeffrey Butler, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections in the County of Westchester, Respondents. [MAJORITY] In a proceeding to validate petitions designating appellant as a candidate in the Democratic Party primary election to be held on September 9, 1975 for nomination for the public office of Superintendent of Highways of the Town of North Salem, the appeal is from a judgment of the Supreme Court, Westchester County, entered August 15, 1975, which dismissed the proceeding. Judgment, and also order of the same court, entered August 22, 1975, insofar as it adhered to the original determination, affirmed, without costs. In this case, the objector was not served with the order to show cause in this proceeding; nor was he named therein. In our opinion, in a proceeding to validate a previously invalidated petition, the objector is an indispensable party (Matter of Maniscalco v Power, 4 AD2d 479, affd 3 NY2d 918; see, also, Matter of Swan v Cohen, 179 Misc 69, affd 262 App Div 956, affd 286 NY 678). Gulotta, P. J., Rabin, Christ and Shapiro, JJ., concur; Benjamin J., dissents and votes to reverse and to remit the proceeding to Special Term for a hearing on the merits, with the following memorandum: The proceeding was commenced by service in a manner prescribed by the order to show cause and cannot be aborted for failure to include a party, who may or may not have been necessary. On the return date, the objector, who was not included in the order to show cause, appeared specially and was invited to participate by Special Term. He refused to do so. In my opinion, the proceeding should not have been dismissed.