
    In the Matter of the Application of Walter S. Commerdinger, Sr., Respondent, to Cancel Certificate of Election Issued to Thomas Vincent, Appellant, etc. William Hauschil, a Member of the Board of Canvassers of the Town of Smithtown, Appellant.
   In a proceeding instituted under section 330, subdivision 4, of the Election Law, to determine the validity of certain absentee ballots and the applications therefor, cast in the second election district of the town of Smithtown, for the office of assessor of said town, order modified by striking therefrom the fourth, fifth, sixth, seventh and eighth ordering paragraphs, and by denying the motion to declare the counted absentee ballots null and void and to direct a recanvass. As so modified, the order is affirmed, without costs. In our opinion, the Special Term was without jurisdiction to review the validity of the absentee ballots in question and the applications therefor, under subdivision 4 of section 330 of the Election Law, since they were never protested nor objected to as provided for by section 210 of the Election Law. We agree with the ruling of the Appellate Division of the Fourth Department in Matter of Baker (215 App. Div. 791) disapproving the views in respect to the law stated in the opinion at Special Term (126 Mise. 49). The cancellation of the certificate of election issued to the said Vincent was proper as the result of the election was a tie and, therefore, neither candidate was elected. Young, Carswell, Davis, Adel and Taylor, JJ., concur.  