
    In the Matter of Michael Potter, Individually and as Chairman of the City Fusion Party, Appellant, and Vincent R. Impellitteri, Individually and as a Declared Candidate for Mayor, et al., Interveners, Appellants, against William J. Heffernan et al., Constituting the Board of Elections of the City of New York, Respondents, and Chairmen of the Democratic County Committees for the Five Counties Constituting the City of New York et al., Interveners, Respondents.
    First Department,
    September 19, 1950.
    
      
      Walter M. Weis (Edward Potter with him on the brief), for appellant.
    
      George W. Whiteside (Edward B. Neaher and Alan S. Fuller with him on the brief), for Vincent R. Impellitteri, and Walter T. Shirley, individually and as Chairman of the Independent Citizens’ Committee for the Election of Vincent R. Impellitteri as Mayor, interveners-appellants.
    
      Louis J. Lefkowitz (Paxton Blair with him on the brief), for Chairmen of the Republican County Committees of the Five Counties Constituting the City of New York, interveners-appellants.
    
      John P. McGrath, Corporation Counsel (W. Bernard Richland and Stanley Buchsbaum with him on the brief), for Board of Elections of The City of New York, respondent.
    
      William J. O’Shea of counsel (Bernard Hershlcopf and Jacob Markowitz with him on the brief; Jacob Markowitz, George Rosling, John L. Flynn, Joseph M. Lonergan and Irving Rivkin, attorneys), for Chairmen of the Democratic County Committees for the five counties constituting the City of New York, interveners-respondents.
    
      
      Benjamin Rassman of counsel (Benjamin Gassman, Matthew M. Levy and Max Bloom, attorneys), for the Liberal Party of the Five Counties of the City of New York, intervenerrespondent.
   Per Curiam.

We agree that the time between September 2 and midnight of September 9, 1950, within which independent nominating petitions might be obtained and filed was an adequate, sufficient and reasonable period. On the law applicable to the state of facts herein disclosed, the court should not have extended the time to file independent nominating petitions expressly fixed by chapter 329 of the Laws of 1950 (Election Law, § 314, subd. 11). Accordingly the last three decretal paragraphs numbered 1, 2 and 3 of the order appealed from should be deleted. In all other respects, the order denying the motion to enjoin the election of a Mayor at the ensuing general election should be affirmed.

Leave is hereby granted to appeal to the Court of Appeals.

Van Voorhis, J.

(concurring in part). I concur with the majority in denying so much of the petition as asks to restrain the holding of an election for Mayor in 1950, but solely upon the ground that subdivision 12 of section 143 of the Election Law allows fourteen days after the vacancy occurred on September 2d in which to file independent nominating petitions. Bearing in mind that sections 316 and 330 require a liberal construction of these provisions of the Election Law, there would appear to have been no occasion for the Legislature to have allowed fourteen days in which to file following the occurrence of a vacancy happening after the last day otherwise provided for the filing of independent nominating petitions, unless it had intended to grant a similar minimum time for that purpose where the vacancy occurs earlier. I think that persons desiring to file petitions for independent nominations for Mayor had until September 16, 1950, to do so as matter of right, and that for this reason the order appealed from should be affirmed.

Glennon, J. P., Dore, Cohn and Shientag, JJ., concur in Per Curiam opinion; Van Voorhis, J., concurs in part in memorandum.

Order modified. Leave to appeal to the Court of Appeals granted.  