
    In the Matter of Patrick W. Davey, Petitioner, v. Ewald B. Nyquist, as Acting Commissioner of Education of the State of New York, Respondent.
    Supreme Court, Special Term, Albany County,
    November 8, 1968.
    
      J. Richard Fitzgerald for petitioner. Robert D. Stone, John P. Jehu, Elizabeth M. Eastman and Donald O. Meserve for respondent.
   De Forest C. Pitt, J.

In this article 78 proceeding the petitioner seeks judgment declaring null and void a certain determination of the respondent, Ewald B. Nyquist, as Acting Commissioner of Education of the State of New York, which determination dismissed an appeal to him from the result and conduct of a special school district election held to organize a new central school district. The respondent has served an answer to the petitioner herein and further has made objections in point of law seeking judgment dismissing the proceeding. The subject school districts have appeared with the consent of the petitioner amici curiae.

It is the position of the petitioner, in part, that the respondent acted in an arbitrary manner in recounting the ballots, in that he did not confine himself to those ballots which were determined by the board of canvass to be void and thereafter contested upon the appeal to him. With regard to this the court is not aware of any authority that would so confine the Commissioner in his inquiry and must actually conclude that the same tends to negate the contention of arbitrariness. Nor can the court find improper the discretion exercised by the Commissioner in declaring additional ballots void. (The ballots are before the court and the reasons given in the respondent’s decision for declaring them void are found to be based upon fact.)

Further, the court is not persuaded to upset the respondent’s determination made in regard to the distribution of the pamphlet entitled, The Merger Proposal,” and the effect of its language upon the electorate.

Summarily, it may be stated that upon examination of the subject decision and the facts presented by the papers .submitted upon this proceeding the court has found no grounds upon which to disturb the respondent’s determination, particularly in view of the limited area of judicial authority in such matters. (Matter of Board of Educ. v. Allen, 14 A D 2d 429.)

Accordingly, submit judgment dismissing the petition.  