In Matter of Burke v. Cohen (265 N. Y. 210) the distinction between constitutional officers and others was abandoned. The opinion in that case referred to city offices, but the principle upon which that case was decided applies to town officers, so that article X, section 5, of the State Constitution applies to an election to fill a vacancy in a town office. Since subdivision 5 of *461 section 64 of the Town Law (Cons. Laws, ch. 62) conflicts with this constitutional provision, it must be held, to be invalid. We pass on no other question.

The order should be affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Order affirmed.