The opinion
Wachtler, Fuchsberg and Cooke, JJ.
(dissenting). Unlike the petitioners in Matter of Pell v Coveney ( 37 NY2d 494 , decided herewith), the objectant here is not an aggrieved candidate. The Supreme Court Justice who signed the order to show cause made no direction for his inclusion as a party or for service on him. When, having apparently learned of the proceeding, he nevertheless appeared by attorney on its return date, he made no application to be joined as a party. Nor did his counsel plead surprise or seek or express the need for additional time to meet the merits. On the contrary, without the slightest suggestion of prejudice, he categorically refused the Justice’s offer, made in open court, to allow him to so participate.
Under the particular facts of this case, the order of the Appellate Division should be reversed and the matter remitted for determination of the merits. (See Matter of Lamula v Power, 13 NY2d 873 , and Matter of Lloyd v Power, 37 AD2d 792 .)
Judges Jasen, Gabrielli and Jones concur with Chief Judge Breitel; Judges Wachtler, Fuchsberg and Cooke dissent and vote to reverse in a memorandum
Order affirmed.