name and residence. Such certificate shall also designate, in not more than five words, the name of the political party by which the nomination is made and shall be properly authenticated. Such certificate shall also, upon its face, appoint a committee of three or more persons to fill a vacancy in any of such nominations occurring for any of the reasons specified in section one hundred and thirty-five of this chapter between the date of such nomination and the day of election. Such certificate shall be filed with the clerk of such city, village or town, respectively. In towns in which town meetings are held at the time of the general election, certificates of nomination of candidates for town offices shall be in duplicate, one of which shall be filed with the town clerk of the town in which such officers are to be voted for and the other with the board of elections of the county in which such town is located. Such certificates, in towns in which town meetings are held at the time of the general election, shall be so filed not earlier than the fifth Tuesday and not later than the fourth Tuesday before such election. In villages, and in cities and towns in which the city elections or town meetings are held at a time other than the day of general election, such certificates shall be filed with such city, village or town clerk, not less than twenty nor more than thirty days before the day of election or town meeting. All such filed certificates and corrected certificates of nomination, all objections to such certificates and all declinations of nominations are hereby declared to be public records.

Derivation: Election Law, pt. of § 56, as amended by L. 1898, ch. 335; L. 1901, ch. 654; L. 1911, ch. 891.

Repealed and new section inserted by L. 1913, ch. 820; amended by L. 1918; L. 1920, ch. 878, in effect May 21, 1920.

Cross-references.-Misconduct in relation to certificates of nomination. Penal Law, § 760 (part 5, post.) See also note to Election Law, §§ 123, 124 and 125.)

Forms.-For party certificates of nomination, see Forms (part 12, post.) Sufficiency of certificate.-A paper purporting to be a certificate of nomination for village officers made by the Independence League at a primary is not sufficient to warrant placing the names of the candidates upon the official ballot where it appears that sufficient notice of the primary was not given. Matter of Freund (1907), 53 Misc. 354, 103 N. Y. Supp. 429.

§ 122. Independent nominations.

Nominations made as provided by this and the next section shall be known as independent nominations, and the certificate whereby such nominations are made shall be known as an independent certificate of nomination. Independent nominations of cadidates for public office to be voted for by all the voters of the state can only be made by twelve thousand or more voters of the state; provided, however, that in making up such number at least fifty voters in each county of the state (the counties of Fulton and Hamilton to be considered as one county) shall subscribe the certificate provided for in this and the next section. Independent nominations of candidates for offices to be voted for by the voters of any political subdivision of the state, other than a village, can only be made by five per centum of the total number of votes cast for governor at the last gubernatorial election in such political subdivision, or, if the political subdivision be a village, by five per centum of the total number of votes cast at the last regular village election, except

ing that not more than three thousand electors shall be required to make an independent nomination in any political subdivision; and excepting that not more than one thousand five hundred electors shall be required to make an independent nomination for a borough or county office.

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

Amended by L. 1911, ch. 891, § 62; L. 1913, ch. 800; L. 1918, ch. 323; L. 1920, ch. 881, in effect May 21, 1920.

Construction. This section was meant to cover all offices and should not be otherwise construed. Matter of Fagan, 21 Misc. 403, 47 N. Y. Supp. 288. The laws relating to independent nominations should be liberally construed. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

The provisions of this section contemplate only a single certificate of independent nominations for state offices, which must be subscribed and verified by at least fifty electors of each of the counties of the state, counting Fulton and Hamilton as one. Matter of McDonald (1898), 25 Misc. 80, 54 N. Y. Supp. 690.

Independent nomination of alderman in New York city. Where it ap pears that an assembly district and an aldermanic district in the city of New York are coterminous, the statutory rule requiring 500 signatures to a certificate of independent nomination for the office of member of assembly will, by analogy, be deemed applicable to an independent nomination for the office of alderman. Matter of Gullotta (1905), 108 App. Div. 278, 95 N. Y. Supp. 616; Matter of Fagan (1897), 21 Misc. 403, 47 N. Y. Supp. 288.

Although the charter of the city of New York has been altered since the Election Law was enacted so as to provide for the election of an alderman in a district of less extension than a ward, and there is no specific provision in the Election Law for the making of independent nominations in an official district smaller than a town, ward or village, such nomination is embraced within the scope of that part of the above section which provides for independent nominations or candidates for public office to be voted for only by the electors of a town, or ward of a city or village. People ex rel. Behrmann v. Voorhis (1901), 168 N. Y. 367, 61 N E. 283, aff'g 65 App. Div. 11, 72 N. Y. Supp. 293.

The office of justice of the Municipal Court of the City of New York is an office in the judicial system of the State and is not a borough or county office. Hence, an independent certificate of nomination for said office must be subscribed by not less than five per centum of the total number of votes cast for Governor at the last gubernatorial election in the district (not exceeding 3,000 electors), as required by section 122 of the Election Law, and a certificate subscribed by less than said number of persons is insufficient to entitle the candidate to have his name printed upon the ballot. Matter of Richards (1917), 179 App. Div. 823, 167 N. Y. Supp. 152, aff'd 221 N. Y. 684.

A justice of the Municipal Court, borough of The Bronx, is neither a borough nor a county officer and hence the number of signatures to an independent certificate of nomination to that office is not governed by that portion of the section which makes the signatures of 1,500 electors sufficient for an independent nomination. The requisites of the certificate are those stated in the prior portion of the section which makes the signatures of five per cent. of the total number of votes cast for governor at the last gubernatorial election in the Municipal Court district, or 3,000 signatures, essential to a valid nomination. Matter of Greenwald v. Boyle (1917), 179 App. Div. 672, 167 N. Y. Supp. 154.

The expression "political subdivision of the state," as used in said section, applies to the district from which any public officer is to be elected. Matter of Richards (1917), 179 App. Div. 823, 167 N. Y. Supp. 152, aff'd 221 N. Y. 684. Independent nomination of supervisor.-As to number of signatures necessary in order to make an independent nomination for the office of supervisor, see Report of Atty.-Gen. (1903), 438.

Right to nominate by independent certificate.-A political body which has acquired the right to nominate by primary and convention thereby loses its

right to nominate by independent certificate of nomination, continuing during the period in which the party nominating status or strength of 10,000 votes on office of governor is retained. Opinion of Atty.-Gen., rendered Feb. 15, 1907. As to nomination of regular party candidates by independent party, see Fernbacher v. Roosevelt (1895), 90 Hun 411, aff'g 14 Misc. 199, 35 N. Y. Supp. 898. Conflicting nominations.- When there is a contest over two certificates signed by different nominators, the preference of the committee in charge of the general ticket should have great weight in determining who shall be candidate in that column. Matter of Folks (1909), 134 App. Div. 376, 119 N. Y. Supp. 71, aff'd 196 N. Y. 540.

A certificate filed with the Board of Elections, nominating candidates of another party, who are in opposition to the ticket on which they desire to be placed, should not be recognized merely because it is the first certificate filed. Matter of Folks (1909), 134 App. Div. 376, 119 N. Y. Supp. 71, aff'd 196 N. Y. 540.

Validity of independent certificate.- Where the progressive party authorities fail to nominate a candidate for supreme court justice and subsequently a certificate signed by the requisite number of electors of said party was duly filed, each signer making oath to support such candidate at the polls, the court is not justified in declaring such certificate invalid, it having been filed in time with the secretary of state. Matter of Hasbrouck (1912), 77 Misc. 677. Constitutionality.-The election law in so far as it requires independent nominations for candidates for public office, other than municipal candidates, to be voted for in a district less than the whole state, but greater than a town or ward of a city and for a candidate for member of assembly, to be signed by more than five hundred voters, is unconstitutional and void. People ex rel. Hotchkiss v. Smith (1912), 206 N. Y. 231.

The amendment of 1911 requiring the signatures of 1,500 voters for a valid independent nomination, other than for municipal offices to be voted for in a district less than the whole state, but greater than a town or ward of a city, except that 800 voters or more of an ascertainable district may make such nomination for member of assembly to be voted for in such district, is unconstitutional and void, because in some districts of the state the requirements of the statute are such as unreasonably to deny the electors equality of opportunity to vote for the candidate of their choice. People ex rel. Hotchkiss v. Smith (1912), 152 App. Div. 514.

While the scheme of the 1911 amendment may not operate to hinder unreasonably the electors in some districts, the court will not attempt to separate the good from the bad and the act must fall as a whole. People ex rel. Hotchkiss v. Smith (1912), 152 App. Div. 514.

The amendments made to section 122 of the Election Law in 1911 and 1913 do not violate the Constitution, but prescribe a general plan for independent nomination to which the court must give effect. Matter of Richards (1917), 179 App. Div. 823, 167 N. Y. Supp. 152 aff'd 221 N. Y. 684.

Waiver of defendant as to number of signatures.- Persons seeking to re-' view an independent political nomination may waive in open court any objection that might be made upon the ground that the number of persons signing the petition is insufficient under the Election Law. Matter of O'Brien (1912), 152 App. Div. 856.

Number of signatures for judicial nomination.-It seems that 900 signers to a petition for an independent nomination for justice of the supreme court is not sufficient and that the statute requiring 1,500 signers is not unconstitutional. Matter of O'Brien (1912), 152 App. Div. 856.

Right of electors to make nominations after political organization has failed to do so. The failure of the National Progressive party, an incorporated independent political organization, and its committee, to make any nomination for justice of the supreme court in the third judicial district did not bar the members of the party from making it. Such nomination would be invalid if it were shown that the signers of the petition were outsiders, not members of said party and were attempting to appropriate its emblem to themselves. Matter of O'Brien (1912), 152 App. Div. 856.

Nomination of candidate nominated on other ticket.— Where the Progressive party failed to make the nomination for justice of the supreme court, the

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.

Section cited.-Matter of Burr v. Voorhis (1920), 229 N. Y. 382.

§ 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 herein before provided for of the notary or other officer shall be in the following form substantially:

"State of New York, County of ... .

...

in the year

"On the .... day of 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:

before me personally came (here insert name of witness), to me personally known, who, being by me duly sworn, did dépose 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