
    In the Matter of the Trustee of School District No. 9 of Town of Onondaga, Petitioner, against Commissioner of Education of State of New York, Respondent. 
    Supreme Court, Special Term, Albany County,
    May 3, 1951.
    
      Curtiss D. Matterson for petitioner.
    
      Charles A. Brind, Jr., and John P. Jehu for respondent.
   Hamm, J.

The facts are not in dispute. On and before October 2, 1950, an order of annexation dated September 26, 1950, and reciting an effective day of December 7, 1950, was duly filed with the town clerks and the district clerks and trustees of the school district affected.

The statute provides (Education Law, § 1802, subd. 2, par. b) that a petition for a referendum in connection with such annexation must be filed “ within sixty days after the last filing of the copies of the aforesaid order ”.

The Commissioner of Education not earlier than December 5, 1950, received a petition dated December 4, 1950, requesting a referendum on the annexation mentioned in the order.

At the time the petition for referendum was filed the order of the commissioner had become final. The commissioner properly refused to call the meeting because he was without jurisdiction so to do.

The petition is denied and the proceeding is dismissed, without costs.

An order may be submitted accordingly.  