
    (October 16, 1973)
    In the Matter of Murray Schwartz, Respondent, v. Alice Sachs et al., Constituting the Board of Elections of the City of New York, Appellants.
   In a proceeding pursuant to article 78 of the CPLR to compel the Board of Elections of the City of New York to place on the ballot for the general election to be held November 6, 1973 the names of stated persons as candidates of the City Fusion Party for certain public offices, namely, Donald Manes for President of the Borough of Queens, Nicholas Ferraro for District Attorney of Queens County and Eugene Mastropieri for Councilman-at-large in Queens County, said board appeals from an order of the Supreme Court, Queens County, dated October 5, 1973, which granted the application. Order reversed, without costs, and proceeding remitted to Special Term for a hearing and a new determination in accordance with the views expressed herein. While the failure to timely file a certificate of acceptance or declination of a nomination as required by subdivision 15 of section 149-a of, the Election Law is a fatal defect and the court has no discretionary power to excuse such defect (Election Law, § 143, subd. 12; Matter of Monroe v. Lomenzo, 40 A D 2d 727, affd. 31 N Y 2d 705), the Board of Elections has a statutory obligation to “Forthwith upon the filing of a certificate of nomination or a petition designating or nominating a person or persons for public office * * * [to] mail notice thereof to each such person. Such notice shall also state the last day to decline such designation or nomination” (Election Law, § 144). In the case at bar we are unable to ascertain upon the record before us when the Board of Elections gave this required notice. If it was given after the time to file a notice of acceptance, then of course the failure to file the acceptance within the period set forth by the statute cannot be considered a defect. The failure to timely file an acceptance or declination can only be considered a defect when the notice required by section 144 of the Election Law has been given by the Board of Elections prior to the date set forth in subdivision 15 of section 149-a of the Election Law for filing acceptances or declinations. Where the board fails to give notice of a nomination until after the date specified in subdivision 15 of section 149-a, the candidate must promptly file an acceptance or declination, but is not bound by the date specified in subdivision 15 of section 149-a. Rabin, P. J., Hopkins, Munder, Martuscello and Latham, JJ., concur.  