
    (September 15, 1972)
    In the Matter of Martha T. Dayton, Respondent, v. Board of Elections of Albany County et al., Respondents, and Robert E. Shaffer, Appellant.
   Appeal from a judgment of the Supreme Court at Special Term, entered September 5, 1972 in Albany County, in a proceeding under section 330 of the Election Law which ordered that Martha T. Dayton be declared the winning candidate in the Primary Election for the office of candidate of the Democratic Party for Member of Assembly, 105th District, for the State of New York. On this record it is impossible to conclusively determine which candidate received the greater number of votes. Consequently, we are constrained to direct a new election. (See Election Law, § 330, subd. 2.) Judgment reversed, on the law and the facts, without costs, and new election directed to be held on or before September 26, 1972. Herlihy, P. J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.  