
    In the Matter of Harold Brown, Appellant, v Ulster County Board of Elections et al., Appellants, and Peter J. Savago, Respondent.
    Argued August 29, 1979;
    decided August 30, 1979
    
      APPEARANCES OF COUNSEL
    
      Robert G. Lyman for petitioner-appellant.
    
      William A. Kelly, County Attorney (William C. Mullany of counsel), for Ulster County Board of Elections, appellant.
    
      Douglas Rutnik for John J. Hogan, appellant.
    
      H. Clark Bell and Francis T. Murray for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, to the extent of reinstating so much of the judgment of Special Term as directed the Ulster County Board of Elections to provide the enrolled Democratic voters of the 9th Legislative District of Ulster County with the opportunity to write in the names of candidates for the office of county legislator. As so modified, the order of the Appellate Division should be affirmed.

While we agree with the Appellate Division that the objector was an indispensable party to this proceeding insofar as it sought to validate the designating petitions of the four enrolled Democrats seeking the Democratic nomination for the four seats in the Ulster County Legislature from the 9th Legislative District and that the failure to serve him precludes the court from entertaining that phase of the proceeding (Matter of Butler v Hayduk, 37 NY2d 497), we are of the opinion that due to the failure of all pending designations of the Democratic Party for said office, Special Term was empowered here under section 16-100 of the Election Law to grant the request in the petition for alternative relief, to wit: an opportunity to ballot on primary day in the 9th Legislative District of the County of Ulster (Matter of Hunting v Power, 20 NY2d 680; Matter of Ramos v Alpert, 41 AD2d 1012, affd 32 NY2d 903). In so doing, Special Term afforded members of the Democratic Party, who would be otherwise without a designated candidate for the office of county legislator, an opportunity to express their choice as to their candidate and to present a candidate to voters in the general election.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli dissents in part and votes to affirm for the reasons stated in the memorandum at the Appellate Division.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.  