
    C. Douglas O’Malley, Respondent, v John J. Macejka, as Town Assessor of the Town of Rotterdam, et al., Appellants.
   Appeals (1) from an order of the Supreme Court at Special Term, entered November 5, 1975 in Schenectady County, which denied defendants’ motion to dismiss the complaint and granted plaintiff’s motion for summary judgment, and (2) from the judgment entered thereon. Defendant, John Macejka, has held the appointive office of Assessor of the Town of Rotterdam since 1964. He was elected a County Representative and assumed that office as a member of the Schenectady County Board of Representatives in January of 1972. He has been re-elected since and continues to serve in both offices. The within action, brought pursuant to section 51 of the General Municipal Law, seeks to declare the office of assessor vacant on the ground that the two offices are incompatible as a matter of law (Metzger v Swift, 258 NY 440; Matter of Smith v Dillon, 267 App Div 39, 43). Defendants moved to dismiss the complaint for, among other things, failure to state a cause of action and now appeal from the order denying their motion as well as the order granting plaintiff’s motion for summary judgment. Plaintiff’s allegations of incompatibility center around provisions of the Real Property Tax Law relating to assessments; the Schenectady Board of Representatives’ function in equalizing tax rates; and the county’s responsibility to create a board of equalization and assessment and appoint a director thereof as provided by charter (Real Property Tax Law, §§553, 800, 804, subd 1; Schenectady County Charter, § 2.08, subd 4; § 3.01, subd 2; §§ 3.00, 5.03). In our view there must be a reversal and a dismissal of the complaint. We do not find the offices of town assessor and county representative to be incompatible per se; that is, one office does not have the right to interfere with the other (People ex rel. Ryan v Green, 58 NY 295). Order and judgment reversed, on the law and the facts, and motion to dismiss the complaint granted, without costs. Greenblott, J. P., Kane, Main, Larkin and Herlihy, JJ., concur.  