
    In the Matter of J. Douglas Trost, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, et al., Respondents.
   Order unanimously affirmed, without costs. Memorandum: Special Term properly dismissed the proceeding as untimely. Even if we were to interpret the statutory scheme of the Election Law most favorably to the petitioner, the proceeding was not timely instituted. The board of elections was required to complete the canvass of primary election returns "within one hundred twenty hours from midnight of the day upon which the primary election is held” (Election Law, § 270, subd 1). The board of elections failed to comply with this statutory requirement and did not complete the canvass and file in its office its tabulated statement until September 23, 1977, 15 days after the primary election. This proceeding was not instituted until September 30, 1977. The petition seeks relief pursuant to subdivision 2 of section 330 of the Election Law which mandates that a proceeding brought thereunder be instituted within 10 days of the primary election. Thus the Legislature allowed an aggrieved candidate five days from the date of the completion of the canvass by the board of elections to start a proceeding under subdivision 2 of section 330 of the Election Law. Even assuming, without deciding, that the petitioner had five additional days from the date of the completion of the canvass by the board of elections in which to bring this proceeding, his action was not timely. (Appeal from order of Erie Supreme Court—Election Law.) Present—Marsh, P. J., Dillon, Hancock, Goldman and Witmer, JJ. (Decided Oct. 7, 1977.)  