In the Matter of Morris Garber, Appellant, v. Henry A. Fisselbrand et al., Constituting the Board of Elections of the County of Onondaga, et al., Respondents, 21 A.D.2d 967

Order unanimously affirmed, without costs of this appeal to any party. The respondent, Board of Elections, is directed to forthwith serve notice of a drawing for a position on the ballot by lot as required in subdivision 1 of

section 104 of the Election Law, the said drawing to be held not later than Monday, August 31, 1964. Memorandum: Subdivision 1 of

section 104 of the Election Law has not been amended by the Legislature since the amendment of

section 1 of

article I of the State Constitution, effective January 1, 1960, authorizing the Legislature to provide that there shall be no primary election in the absence of a contest. Under the facts here presented, it is not necessary to pass upon the question as to whether in the absence of such a contest a demand for determination of position by lot shall be made upon notice of two days or a longer period (Election Law, § 104, subd. 1). (Appeal by petitioner from order of Onondaga Special Term, dismissing the petition.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.