
    In the Matter of the Application of R. D. Cowles and Others, Petitioners, Respondents, to Compel the Board of Elections of the County of Chautauqua, New York, to Accept for Filing the Certificate of Nomination of the Said Petitioners. Peter Cloos, as One of the Two Members of the Board of Elections of Chautauqua County, Appellant.
    Fourth Department,
    October 22, 1937.
    
      Robert M. Hitchcock, for the appellant.
    
      David L. Brunstrom, for the respondents.
   Per Curiam.

Petitioners were regularly nominated at a party caucus and the certificate of their nominations was regular in all respects. The caucus officers on September 17, 1937, mistakenly filed the certificate with the town clerk. It should have been filed with the board of elections of Chautauqua county on or before September 28, 1937. (Election Law, § 140, subd. 5.) The mistake was discovered by the town clerk on October 6, 1937, at which time he attempted to file the certificate with the board of elections but filing was refused upon the ground that the time for filing had expired. It rested within the sound discretion of the Special Term to direct that the certificate be received for filing. (Election Law, § 330; Matter of Lauer v. Bd. of Elections, 262 N. Y. 416; Matter of Darling, 189 id. 570; Matter of Parks, 239 App. Div. 241.) We believe this discretion was properly exercised by the Special Term. The cases relied upon by appellant are clearly distinguishable. Matter of Bissell (245 App. Div. 395) involved a violation of both the letter and the spirit of the Non-Partisan Election Law of the City of Jamestown, N. Y. Matter of McCurn (245 App. Div. 905) involved a complete failure to comply with section 135 of the Election Law. In these two cases the facts failed to show situations in which the court could have exercised discretion and, therefore, denied relief. In the case of Matter of Reis v. Cohen (240 App. Div. 854) it was held that the failure to file in time had not been adequately excused and discretion was, therefore, exercised adversely.

All concur, Sears, P. J., not voting. Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.

Order affirmed in the exercise of discretion, without costs on this appeal to any party.  