Order affirmed, without costs, in a memorandum. The evident purpose of section 149 of the Election Law is to dispense with primary balloting when there is a candidate or slate without opposition. Because of the failure of the only pending designation, the court was empowered under section 330 of the Election Law to make an appropriate order as justice required, namely, to direct the board of elections to provide blank ballots in the pending primary, the intention having been manifested to nominate some candidate.
Concur: Chief Judge FULD and Judges VAN VOORHIS, BURKE, KEATING and BREITEL.
Judges SCILEPPI and BERGAN dissent and vote to reverse in the following memorandum:
The statute (Election Law, § 148) lays down specific conditions under which the opportunity to write in the name of a candidate in a primary election is afforded. Concededly, those conditions are not met in this case, and the order is thus without statutory support.