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officer making it or that he saw them sign. Matter of McClosky (1897), 21 Misc. 365, 47 N. Y. Supp. 294.

A certificate of oath to a certificate of nomination which states that each signer made oath that he was "an elector" will be construed, in connection with the certificate of nomination, to mean an elector of the district or territory in which the nomination is being made. Matter of McClosky (1897), 21 Misc. 365, 47 N. Y. Supp. 294.

Though many electors signing a nomination certificate neglect to add their residences, if the requisite number add their places of residence to their signatures the certificate is not invalidated. Matter of Fitzgerald (1906), 51 Misc. 491, 100 N. Y. Supp. 753.

The signatures of unregistered electors to an independent certificate of nomination are effective if the time for them to register has not expired, at the time they sign; if the time to register has then expired, their signatures are ineffectual. Matter of Horan (1905), 108 App. Div. 269, 95 N. Y. Supp. 607. Where a certificate of an independent nomination is insufficient, a committee, named in the certificate to fill any vacancy is not legally designated and has no power to fill a vacancy, occurring by the declination of the candidate attempted to be nominated. Matter of Adams (1897), 21 Misc. 336, 47 N. Y. Supp. 543.

Where a certificate of independent nomination is presented, the board of elections is not then called upon to determine upon the sufficiency of the number of signers. Such certificates must be filed when presented. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

The certificate in question contained 1,394 names. 1,278 signatures were required. 1,188 of the signatures were improperly witnessed. There being no proof before the court that the witnesses did actually witness the bona fide signatures of qualified voters whom they personally knew in an aggregate number sufficient to meet the requirement of the statute and by mistake signed their names as witnesses in the wrong place, the court is without power to correct the certificate and to order the filing thereof as a valid petition. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30.

When authenticating witnesses to a certificate of independent nomination sign their names up and down the page perpendicular to the signatures of the electors instead of opposite thereto, the provisions of § 123 are not complied with. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30. Where a petition is filed in two sections, the fact that no certificate of good character is attached to one of them is an excusable omission that may be cured. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30.

Where some of the signers of the certificate of nomination were women, their failure to sign their Christian names is an excusable omission which is curable upon submission of proper proof by the signers. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30.

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Name and emblem.-Where there is a contest between several sets of local Independence League nominations, the certificate first filed under that title is entitled to preference, provided that it was filed by the same independent body." Matter of Ind. Nominations (1906), 186 N. Y. 268, rev'g 103 App. Div. 463.

When a body of voters meets for the purpose of organizing an independent ticket and a committee has been appointed which adopts an emblem and a name and subsequently files a petition naming a candidate for the head of the ticket and a committee has been appointed to take charge of the canvass and nomination, the name and emblem adopted by such committee and the persons representing them are to be considered as belonging to that political movement. Matter of Folks (1909), 134 App. Div. 376, 119 N. Y. Supp. 71, aff'd 196 N. Y. 540..

Electors in several districts, who are in general sympathy with the nominators of the city, county and borough candidates, have a right to nominate by petition district candidates and to adopt the same name and emblem as that chosen by nominators of the general candidates. Matter of Wechsler (1909), 134 App. Div. 378, 119 N. Y. Supp. 79.

All electors who hold the same general political views as the city, county and borough candidates have a right to use the same name and emblem for district candidates. Matter of Wechsler (1909), 134 App. Div. 378, 119 N. Y. Supp. 79.

Where district nominations are made by two different nominators, both claiming to be in general sympathy with the city, county and borough candidates, the views of a committee appointed at a mass meeting to nominate the city, county and borough candidates are entitled to great weight on the question as to which of the district nominees are in sympathy with the general ticket. Matter of Wechsler (1909), 134 App. Div. 378, 119 N. Y. Supp. 79.

Neither the board of elections nor the court can interfere with the use of a name and emblem selected by an independent party in its certificate of nomination unless some reason is shown why the name or emblem should not be used, or unless some other party has a prior right thereto. Matter of Wechsler (1909), 134 App. Div. 378, 119 N. Y. Supp. 79.

Where a number of independent electors have adopted an emblem and the name of "Square Deal Party" and nominated a candidate for mayor of the city of Syracuse and a committee representing them has been chosen to fill out the remainder of the ticket, the regular Republican candidate for assemblyman may not procure a petition nominating him for the assembly as an independent candidate under the name and emblem of the "Square Deal Party," without the consent of such committee and, by filing the petition first, acquiring the right to have his name upon the ticket under such party name and emblem. Matter of Com'r of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

Use of name of any organized political party. This section absolutely prohibits a certificate of independent nomination from including the name of any organized political party, and a certificate filed in 1903 which states the words selected for the designation of the independent party as "The Independent Republican Party is a clear violation of the statute. Matter of Smith (1903), 41 Misc. 501, 85 N. Y. Supp. 14.

Use of the name "National Democratic Party" held not a violation of the rights of the "Democratic party." Matter of Greene (1896), 9 App. Div. 223, 41 N. Y. Supp. 177.

The adoption by a body of independent voters in a certificate of nomination for a member of assembly of the name "Independent Democratic Party" violated this section, as it includes the name of an organized political party. Matter of Carr (1904), 94 App. Div. 493, 88 N. Y. Supp. 107.

The name "Social Democratic Party' " is substantially the same as "Democratic Party," and the use thereof is prohibited by this section. Matter of Social Democratic Party (1905), 182 N. Y. 442, rev'g s. c. 105 App. Div. 243, 93 N. Y. Supp. 1023, which aff'd 45 Misc. 194, 91 N. Y. Supp. 941.

The name used in this state should be amended by conforming it with that of the national party of which the local party is a branch. Matter of Social Democratic Party (1905), 182 N. Y. 442, rev'g 105 App. Div. 243, 93 N. Y. Supp. 1023, which aff'd 45 Misc. 194, 91 N. Y. Supp. 941.

Qualification of assembly nominee. Whether a nominee is disqualified because he is a commissioner of deeds must be determined by assembly if he is elected as a member of assembly. Matter of Independent Nominations (1906), 186 N. Y. 268.

Qualifications for signing independent petition. To disqualify an elector for signing an independent petition, he must not only have voted at the primary election, but he must have voted for a candidate for the office sought to be filled by the petition or for delegates to a convention called to name such a candidate. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

Participation in a so-called caucus choosing independent nominees does not debar the participant from joining in the execution of an official certificate of an independent nomination. Rept. of Atty.-Gen. (1911), Vol. 2, p. 269.

After participating in one independent nomination a voter is disqualifled from participating in another independent nomination to the same office. Rept. of Atty.-Gen. (1911), Vol. 2, p. 248.

An elector to be qualified to sign a certificate of independent nomination need not have been registered at the time; it is sufficient if he

registers before his name is counted. People ex rel. Steinert v. Britt (1911), 146 App. Div. 683.

Under subd. 6 of § 123, as amended by L. 1916, ch. 537, providing, among other things, that the name of no person signing a certificate of independent nomination shall be counted unless such person shall be registered, the right of a person so nominated to have his name printed on the official ballot depends upon, among other things, whether before or after filing the certificate of nomination a sufficient number of electors signing the same shall be registered or shall register. Although a person so nominated fails to show that a sufficient number of his nominators have registered, but it appears that the period for registering has not expired, public policy requires that the court entertain his application to have his name printed on the official ballot in advance of the completion of the registration, so that all questions presented relating to the validity and sufficiency of the certificate of nomination may be promptly decided, leaving only the question with respect to registration. Matter of McGrath (1919), 189 App. Div. 140, 178 N. Y.

Supp. 231.

Where the signatures of certain qualified voters to a petition for nomi. nation were challenged solely on the ground that the subscribing witness was not registered in 1917 and 1918 but there is nothing to justify a finding that the statement in his affidavit, which complies in every respect with the statute that he was registered in both years, is not true, an application to have the petition declared invalid will be denied. Matter of Bassett (1919), 108 Misc. 461, 177 N. Y. Supp. 738.

A candidate for the nomination for alderman may act as subscribing witness to the signers of his own petition. Where he acts as subscribing witness to the signatures of qualified voters the certifictae of "good character " required to be signed by the candidate or committee on vacancies when signatures to a petition for nomination are acknowledged by a subscribing witness, is unnecessary. Matter of Bassett (1919), 108 Misc. 461, 177 N. Y. Supp. 738.

Where by the affidavit of an authenticating witness charged with not being registered for the year 1918 it appears that he was in the military service at the time and was registered and voted that year in a military camp, such registration is sufficient under § 123 to qualify him as a witness to a certificate of independent nomination. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30.

Fraudulent and forged signature.-Where five per cent. of the names of the subscribers appearing upon a given sheet are fraudulent and forged, such sheet shall not be considered a valid part of the nominating certificate notwithstanding that the remaining signatures thereon are genuine. Matter of Terry (1911), 146 App. Div. 520, 521, aff'd 203 N. Y. 293.

The provisions of this section with reference to validity of sheets where five per centum of the names appearing thereon are fraudulent or forged has no application to a signer who has failed to register. The statute does provide that his name shall not be counted and the court is not warranted in holding that such failure to be a legal fraud within the meaning of this section. The duplication of names, however, must be regarded as fraudulent under the statute and the same cannot be counted wherever such duplication appears. Matter of Independent Certificate (Mayor of Cohoes) (1912), 78 Misc. 84.

As to when independent certificate will be declared void by reason of names of persons not registered and duplicated names, see also, Matter of Independent Certificate (Assessors of Cohoes) (1912), 78 Misc. 86.

Where, after a certificate for independent nomination for member of assembly had been signed and verified by 519 electors, it was discovered that the candidate was ineligible for the office and without authority from any of the signers the name and address of another person was pasted over the name and address of the original address and without further signature and verification said certificate was filed with the board of elections, the certificate "is fraudulent and forged," within the meaning of this section, as to every name appearing thereon and is to no effect. That the person who made the change acted in good faith under legal advice does not alter the legal effect of his act. Matter of Shook (1912), 78 Misc. 89.

Evidence of signature by election.-Although section 123 provides that an affidavit by an elector that he did not sign the sheet shall be "prima facie evidence" that he did not do so, the same effect is to be given to each form of expression. Both the notarial certificate and the affidavit are prima facie, not conclusive evidence of the fact of signature which, when questioned, is to be determined by the court. Matter of Terry (1911), 146 App. Div. 520, 521, aff'd 203 N. Y. 293.

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

§ 124. Emblems.

It shall be the duty of the state committee of a party to select some simple device or emblem to designate and distinguish the candidates of the party for public office. Such device or emblem shall be shown by a representation thereof upon a certificate signed and duly executed by the chairman and secretary of such state committee, which certificate shall be filed with the secretary of state, and such device or emblem, when so filed, shall in no case be used by any other party or any independent body. When any independent body shall make a nomination of a candidate or candidates to be voted for by the voters of the entire state, it shall be the duty of the persons who shall sign and execute the certificate of nomination of such candidate or candidates, to likewise select some simple device or emblem to designate and distinguish the candidate of such independent body making such nomination, and such device or emblem shall be shown by the representation thereof upon such certificate of nomination. The device or emblem so chosen, when filed as aforesaid, shall be used to designate and distinguish all the candidates of the same party or independent body nominated by such party or independent body, or duly authorized committee or primary. thereof, in all districts of the state and shall continue to be used to designate and distinguish the candidates of such party or independent body in all districts of the state until changed by the state committee of the party or by the independent body choosing such device or emblem. The device or emblem chosen as aforesaid may be a star, an animal, an anchor, or any other appropriate symbol, but neither the coat of arms or seal of any state or of the United States, nor the state or national flag, nor any religious emblem or symbol, nor the portrait of any person, nor the representation of a coin or of the currency of the United States shall be chosen as such distinguishing device or emblem.

Existing devices or emblems, heretofore chosen pursuant to law, shall continue until changed in the manner provided in this section as hereby amended.

Derivation:

Election Law, pt. of § 56. as amended by L. 1898, ch. 335; L. 1901, ch. 654. Amended by L. 1913, ch. 820, in effect Dec. 17, 1913. Consolidators' note.-"A certificate signed and duly executed by the proper parties authorized for that purpose," at the end of the sentence imposing the duty of selecting an emblem on an independent body, is changed to "such certificate of nomination,", for the reason that there can be no "proper parties authorized for that purpose," but the emblem is included in the original nominating petition. The expression may have been intended to include the case of action by a committee designated "for the purposes specified by section sixty-six" (new §§ 135 and 136). The exceptional case is fully guarded in the sections governing it.

Purpose of emblem.-The object of the Election Law is to secure to each voter the right to cast his ballot for the party of his choice, and to this end the emblem is required, so that the illiterate voter may be secure in his choice; and the designation by name is made for the benefit and security of the voter who can read. Matter of Greene (1896), 9 App. Div. 223, 41 N. Y. Supp. 177.

Right to emblem.-The Independence League, having selected the balance scales as an emblem, and filed valid certificates of nomination for certain offices selecting that emblem, its right to such emblem is secured; and it is immaterial whether the League certificate of nomination for member of congress was filed before the certificate of another candidate for that office, selecting the same emblem, as the League candidate has a prior right to such emblem. Matter of Fitzgerald (1906), 51 Misc. 491, 100 N. Y. Supp. 753.

Officer with whom certificates are filed may select, where conflicting nominations are made between two conventions, each claiming to regularly represent a political party. People ex rel. Ward v. Roosevelt (1897), 151 N. Y. 369.

The affidavits of the executive officers of an independent party, like the Independence League, are competent evidence as to whether particular candidates are the legitimate candidates of that party and entitled to the benefit of the party name and emblem. Matter of Quimbly (1906), 116 App. Div. 142, 102 N. Y. Supp. 201..

When a petition signed by independent electors, and which includes the entire Democratic ticket, is supported by a sufficient number of electors to entitle the candidate to a place on the official ballot, it is entitled to be placed in a separate column under the name and emblem to be selected as directed by the statute. Matter of Brevillier (1906), 116 App. Div. 144, 102 N. Y. Supp. 217.

A large body of independent voters who entertain the same political views and who act in harmony and nominate a complete ticket of candidates favorable to their choice to be voted for at an approaching city election, held in conjunction with the state election, are entitled to have all their nominees both for city and state offices placed in the same column under the same emblem. Matter of Wise (1905), 108 App. Div. 52, 95 N. Y. Supp. 843.

The persons executing the respective certificates of nomination are for the purpose of selecting a name and an emblem for use upon the official ballot, to be regarded as one and the same "independent body." Matter of Wise (1905), 108 App. Div. 52, 95 N. Y. Supp. 843.

An emblem on a certificate of nomination although resembling the profile of "Liberty as used on some of the earlier coins, held not to be in riolation of this section. Rept. of Atty.-Gen., Oct. 2, 1909.

§ 125. Conflict in names or emblems.

If two or more different parties or independent bodies shall select the same, or substantially the same, device or emblem or party name, the supreme court or any justice thereof within the judicial district or any county judge within his county shall decide which of said parties or independent bodies is entitled to the use of such device or emblem or party name, being governed as far as may be in his decision by priority of selection in the case of the device or emblem, and of use in the case of the party name. If the other party or independent body shall present no other device or party name after such decision, the custodian of primary records shall select for such other party or independent body another device or party name, so that no two different parties or nominating bodies shall be designated by the same device or party name. If there be a division within a party, and two or more factions claim the same, or substantially the same, device or name, the court or judge aforesaid shall decide between such conflicting claims, giving preference of device and name to the primary, body or committee thereof, recognized by the regularly constituted party authorities.

Except as herein otherwise provided, any question arising with reference to any device, or to the party or other name designated in any certificate filed pursuant to the provisions of this article, or with reference to the construction, sufficiency, validity or legality of any certificate, shall be determined upon the application of any citizen by the supreme court, or any justice thereof, within

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