members of said party had a right to nominate a candidate notwithstanding that such candidate had also been nominated for the same office by another political party and it is not necessary that the electors who signed the petition nominating the state and local officers within a judicial district should be the same persons that signed the petition nominating a justice of the supreme court. Matter of O'Brien (1912), 152 App. Div. 856.

Several nominations in one petition. It is improper to include in a petition nominating a justice of the supreme court other nominations not to be elected within the district, for it is improper to include in one petition candidates to be voted for in several districts not coterminus. Matter of O'Brien (1912), 152 App. Div. 856.

§ 123. Independent certificates of nomination.

1. Independent nominations shall be made by a certificate subscribed by the required number of such electors, each of whom shall add to his signature his place of residence and make oath that he is an elector and has truly stated his residence. The making of the said oath shall be proved by the certificate of the notary or other officer before whom the said oath is taken, and it shall be unnecessary for an elector who has subscribed a certificate of nomination, as herein provided, to sign any affidavit as to the matter to which he has made oath as aforesaid. The certificate hereinbefore provided for of the notary or other officer shall be in the following form substantially:

"State of New York, "County of

... day of...

....

SS.:

in the year

"On the before me personally came (here shall be inserted the names of each and every elector appearing and making oath before the said officer), each of whom was to me personally known and known by me to be the elector whose name and place of residence is subscribed by him to the foregoing certificate and each of the foregoing electors being by me duly and severally sworn did make oath that he is an elector and has truly stated his residence, and that it is his intention to support at the polls the candidacy of the person or persons nominated for public office in the foregoing certificate of nomination.

(Signature and official title.)"

2. As an alternative method of authentication, in lieu of such acknowledgment, provision may be made in such nominating certificate for a column under the title "witness," for the signature

of a witness opposite the names of signers of the certificate. There may be a subscribing witness for any signature, and the same person may act as witness for any number of signers. No person shall be qualified to act as such witness unless he shall be a freeholder within or shall have been for the last preceding five years a resident of the county in which the person resides whose signature he is witnessing; nor unless he shall have been registered either from the same address or within the same election district for the last preceding two general elections, or the territory of such election district as defined at the time of the first of such two registrations; nor unless his good character and honesty are certified to as provided below either by at least one-half of the candidates whom the certificate nominates or by the committee to fill vacancies named therein, which certificate of good character and honesty must be filed with the board or officer with whom the nominating certificate is filed. Such witness must sign his name in the presence of the voter whose name he is witnessing and must thereafter appear before an officer authorized to adimnister oaths and take acknowledgments and make the following affidavit to be attached to the nominating certificate:

"State of New York,

"County of

ss.:

in the year

"On this ...... day of ... before me personally came (here insert name of witness), to me personally known, who, being by me duly sworn, did depose and say that he knew each of the voters whose names and places of residence are subscribed to the foregoing nominating certificate, as to whose signatures deponent has signed as a witness above, and deponent makes oath that he saw each of them sign the same, and that each such voter on signing such certificate declared to deponent that it was his intention to support at the polls the candidacy of the person or persons nominated for public office in the foregoing nominating certificate; and that deponent thereupon signed his name as a witness thereto in the presence of each such

voter.

Said deponent does also make oath that he is (here state his qualifications to act as a witness as above provided) and that he has been registered for the last two general elections as follows: For the general election of 19.. I was registered from (state

address) in the election district of the

district, county of ...

assembly

State of New York. For the gen eral election of 19.. I was registered from (state address) in the

3. The certificate to the good character of the witness must be substantially as follows:

The undersigned hereby certifies to the good character and honesty of the following named person acting as witness to signatures upon a nominating certificate for the next ensuing election:

I certify that I have known the said witness for (here state length of acquaintance) and that all the facts herein stated as to the character, honesty, residence, business and business address of the witness certified to, are stated upon my knowledge.

Dated

...

(Signature) (Residence)

...

If the person making such certificate of good character and honesty has not personal knowledge of all such facts, his certificate may nevertheless be accepted, provided he shall state therein that any fact, specifying it, not made on his personal knowledge, is made in good faith upon information received from another person whom he names, and further provided that he attaches a certificate of such other person in substantially the foregoing form stating such fact or facts upon personal knowledge. Such other person must be a qualified elector of the district for which the nomination is made.

4. Any such witness, candidate, member of committee to fill vacancies or other person, who makes a false affidavit, certificate or statement as thus provided for, is guilty of a misdemeanor and shall be punished by imprisonment for a term of not less than three months.

5. The certificate of nomination and each separate paper thereof, if there be more than one such paper, shall contain the following declaration which shall be subscribed by the signers thereof:

"We the undersigned duly qualified electors of the district for which the nomination for public office is hereby made under the provisions of sections one hundred and twenty-two and one hundred and twenty-three of the election law do hereby declare that it is our intention to support at the polls the candidacy of the person or persons herein nominated for public office."

The certificate shall also contain the titles of the offices to be filled, the name and residence of each candidate nominated, and if in a city, the street number of such residence and his place of business, if any; and shall designate in not more than five words the political or other name which the signers shall select, which name shall not include the name of any organized political party.

A certificate may designate upon its face one or more persons as a committee to represent the signers thereof, for the purposes specified by section one hundred and thirty-five of this article. The signatures to the certificate of nomination need not all be appended to one paper. No person shall join in nominating more candidates for any one office than there are persons to be elected thereto, and no certificate shall contain the names of more candidates for any office than there are persons to be elected to such office.

6. The name of no person signing an independent certificate of nomination shall be counted unless such person shall on one of the days of registration in such year be registered as a qualified elector, and in case a candidate nominated by an independent certificate of nomination be at the time of filing the said certificate or afterwards the candidate of a political party for the same office the name of no person who is an enrolled member of such political party shall be counted, except where such nomination is afterwards made by a party committee or committee to fill vacancies. For the purpose of ascertaining whether the person whose name appears on an independent certificate of nomination signed such certificate, the affidavit or testimony of such person that he did not sign such certificate shall be prima facie evidence that he did not sign such certificate. If the name of a person who has signed a certificate of independent nomination appear upon another certificate nominating the same or a different person for the same office, it shall not be counted upon either certificate.

Derivation: Election Law, pt. of § 57, as amended by L. 1899, ch. 363, § 1; L. 1901, ch. 654, § 4.

Amended by L. 1911, ch. 649; L. 1916, ch. 537, in effect May 15, 1916. Consolidators' note.- The sentence requiring the adoption of an emblem by independent bodies is omitted, for the reason that this requirement is amply covered by section 124, which now relates by position as well as in express terms to emblems of parties and independent bodies equally.

Cross-references.- Misconduct in relation to certificates of nomination. Penal Law, § 760 (part 5, post). See also notes to Election Law, §§ 121, 124

and 125.

Forms.- Forms of independent certificate of nomination. (part 12, post).

See Forms

Constitutionality of section.-The provisions of this section that "the signatures to a certificate of nomination need not all be appended to one paper" and that “no separate sheet comprising an independent certificate of nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such sheet are fraudulent or forged," is not unconstitutional because individual nominators are not constrained to subject themselves to its operation. They may all sign Matter of Burke v.

a single sheet or each may sign a sheet by himself. Terry (1911), 203 N. Y. 293.

Requiring nominator to be registered is valid.—The provision of the 1911 amendment that no person signing an independent certificate of nomination shall be counted unless such person shall on one of the days of registration in such year not be registered as a qualified elector tends to prevent fraud and to make more certain the good faith, of the persons seeking to present to the voters independent candidates for office. A person signing an independent certificate of nomination should be counted if he registers in such year either before or after signing such certificate. People ex rel Hotchkiss v. Smith (1912), 206 N. Y. 231, aff'g 152 App. Div. 514.

Placing name of candidate on other ticket is valid.—The provision of the 1911 amendment which requires that in case a candidate nominated by an independent certificate of nomination be at the time of the filing of such certificate or afterwards a candidate of a political party for the same office, no person who is an enrolled member of such political party shall be counted, is not an unreasonable provision. People ex rel. Hotchkiss v. Smith (1912), 206 N. Y. 231, aff'g 152 App. Div. 514.

Signing two or more independent certificates.-The provision of the 1911 amendment that no person shall join in nominating more candidates for one office than there are persons to be elected thereto, when construed as only intended to prevent an elector from signing two independent nominating petitions for the same office, is not unreasonable. People ex rel. Hotchkiss v. Smith (1912), 206 N. Y. 231, aff'g 152 App. Div. 514.

Statutes now in force as to independent nominations.-Section 57 of chapter 680 and section 57 of chapter 909 of the laws of 1896, relative to number of signatures required upon a certificate for independent nomination are valid and constitutional and are now operative by reason of the unconstitutionality of such portion of section 122 as was so declared in People ex rel. Hotchkiss v. Smith, 206 N. Y. 231. People ex rel. Woodruff v. Britt (1912), 206 N. Y. 246.

Construction. The provisions relating to certificates of nomination by independent bodies should be liberally construed. Matter of McClosky (1897), 21 Misc. 365, 47 N. Y. Supp 294; Matter of Bulger (1905), 48 Misc. 584, 97 N. Y. Supp. 232. Report of Atty. Gen., Oct. 2, 1909.

The requirements that independent nominations shall be made by a certifi cate subscribed by electors of the State who are entitled to vote therein, and that each of such electors shall add to his signature his place of residence, and make oath that he is an elector and has truly stated his residence, are matters of substance and must be strictly followed. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

Provisions of sections 122 and 123 indicate the purpose of the Legislature to