
    In the Matter of Edward J. O’Neill, Petitioner, against William E. Slater et al., Respondents.
    Supreme Court, Westchester County,
    October 14, 1957.
    
      
      Harry G. Herman, County Attorney, for Board of Elections.
    
      Arthur 0. Lipinshi for respondents.
    
      Wekstein & Friedman for petitioner.
   Robekt Doscheb, J.

This is an application, inter alla, to strike the nomination of one Slater as a candidate for the office of councilman representing the ninth ward in the city of Yonkers. Said Slater was nominated in the primary election, held September 10, 1957, for the office of mayor of said city.

This court finds no specific constitutional or statutory authority that either permits or prohibits the same person being a candidate for two offices at the same election. Nevertheless, where such candidate, if elected, cannot hold both offices, the spirit of the Election Law forbids such dual candidacies. (Matter of Burns v. Wiltse, 303 N. Y. 319.)

In the case at bar, the supplemental charter of the City of Yonkers provides that the acceptance of any other office operates to vacate the office of councilman or mayor. Hence, the same candidate, if elected, could not hold both offices.

The constitutional provisions contemplated that officers elective by the people were those who at the time of election could take and hold the office, if elected. The respondent Slater could not take and hold both offices for which he was nominated and, hence, is not a legal candidate for the office of councilman, his nomination for mayor having come first.

Motion granted.

Submit order.  