Order affirmed, without costs. We read section 138 of the Election Law as mandating that a nominating petition shall include a Committee to Fill Vacancies. There can be no question as to legislative intent in view of the fact that 40 years ago, when committees to fill vacancies were by law permissive, the Legislature amended the statute so as to provide that independent nominating petitions "shall" provide for such committees (L. 1922, ch. 588; Election Law, former § 137 [now § 138]). No opinion.
Concur: Judges DYE, FROESSEL, BURKE, FOSTER and HUNT. Judges FULD and MacAFFERfn_ dissent and vote to reverse upon the ground that to affirm here and to hold invalid the independent nominating petition of appellant Thaler is to permit technicality and literalness to run riot. The Legislature could never have intended such a result as this.
Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge DESMOND and Judge VAN VOORHIS.