the judicial district, or any county judge within his county, who shall make such order in the premises as justice may require, but the final order at special term must be made on or before the twelfth day or, in the case of a certificate of nomination of a town or village officer, the seventh day preceding the day of election. Such questions shall be heard upon such notice to such officers, persons or committees as the said court or justice or judge thereof shall direct.

The supreme court, at special term, in any judicial district in which two or more proceedings are pending in such district under the provisions of this section may, by order, consolidate all such proceedings and provide that further proceedings therein be had before such court at special term, in all cases where the question. or questions involved are identical. If one or more of such proceedings be pending before a justice or county judge, notice of such order shall be forthwith given to such justice or judge.

This section shall not apply to a certificate filed pursuant to section one hundred and twenty when the question involves a determination as to the authority of a convention or committee or the legality or effect of its action. In such case, the question shall be determined in proceedings instituted under section fifty-six of this chapter.

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

Amended by L. 1911, ch. 649; L. 1913, ch. 820; L. 1914, ch. 244; L. 1921, ch. 479, in effect May 2, 1921.

Cross-references.-As to use of name of any organized political party, see Election Law, § 123 and note. As to Emblems, see note to Election Law, § 124. See also notices to sections 121 and 122 of Election Law.

See, generally, Matter of Werther (1916), 94 Misc. 681, 158 N. Y. Supp. 321. Hearings on legality of nominations, etc., by filing officer. - Where a dispute arises owing to the substantial identity of names or emblems chosen by two political parties, it is to be determined by the officer with whom the certificates of nomination are filed. Under the statute such officer must decide the dispute by determining as a matter of fact the "priority of designation in the case of a device or emblem, and of use in the case of the party named "irrespective of the filing of the certificates. Matter of Smith (1901), 36 Misc. 292, 73 N. Y. Supp. 463.

The provision authorizing the officer with whom certificates of nomination are filed to select the device or party name for factional candidates, applies where conflicting nominations are made between two conventions, each claiming to be regular representatives of a political party. People ex rel. Ward v. Roosevelt (1897), 151 N. Y. 369, 41 Ñ. Y. Supp. 572.

Where questions of procedure in political conventions, or the regularity of committees are involved, which are regulated solely by party usages and customs, the officer called upon to determine such questions should follow the decisions of the regularly constituted authority of the party; and, courts in reviewing the determination of such officers should not in any way interfere therewith. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624.

Where a notary public through inadvertence fails to swear some of the signers of the certificate of nomination, he may explain such error to the officer filing the certificate, by affidavits, and the officer is bound to accept the evidence and deduct the number of the persons who were not sworn from the total number of signers of the certificate. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

The proceedings had before the officer filing in their nature, and the rules, as to pleadings, not be strictly maintained as in a civil action. Misc. 396, 47 N. Y. Supp. 543.

the certificate are summary objection or evidence, should Matter of Adams (1897), 21

The affidavit of a person, whose name appears upon the certificate of nomination, stating that he is the only person living at the street number given in the certificate, and that he never signed the certificate, should be received by the officer filing the certificate; and on affidavit of another signer that he never swore to the certificate should also be received. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

If there are not fifty bona fide signatures to the certificate, properly attested, in each of the requisite counties, the nomination is invalid. Matter of Adams, 21 Misc. 396, 47 N. Y. Supp. 543.

Where the name adopted by a body of independent voters in a certificate of nomination for member of the assembly, includes the name of an organized political party, the county clerk has no power or authority to select another name in place of the one chosen and to place the nominee named in the certificate upon the official ballot as a candidate of such new party. Matter of Carr (1904), 94 App. Div. 493, 88 N. Y. Supp. 107. Clerk with whom a certificate of nomination is filed may determine whether the parties named in such certificate are legal voters. Report of Atty.-Gen. (1904), 270.

Proceedings to review determination of officer. These proceedings may be heard on affidavits. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

The hearing, in a proceeding to review the determination of a filing officer, must be confined to papers upon which the original determination was based. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624; Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

It will be presumed in these proceedings that facts offered to be proved by affidavits presented to the officer filing the certificate and erroneously rejected by him were proved. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

It is the duty of courts and judges entertaining proceedings under the Election Law to speedily decide the questions presented to them. Matter of Hennessy (1900), 164 N. Y. 393, rev'g 54 App. Div. 180.

Where a state nominating convention determines a political question the court will reverse the determination unless it is shown to have been the result of fraud or oppression. Matter of Nash (1902), 36 Misc, 113, 72 N. Y. Supp. 1057.

The objection that it does not appear affirmatively that notice of a primary election was published as required by the Primary Election Law cannot be taken for the first time on a review of the determination of the board of elections as to the result, and particularly where the alleged defect was not specified in the petition for a review. Matter of Kennedy (1902) 36 Misc. 721, 74 N. Y. Supp. 369.

Notwithstanding the fact that an election has been held and a decision of the question involved in proceedings to review the decisions of a filing officer cannot effect the result of that election, yet, where the point at issue is one of public interest affecting the rights of all the voters of the state, the court will determine it. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y.

Supp. 388.

A review of the determination of the officer filing a certificate of nomination may be had by a motion made on a petition filed. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388.

In proceedings to determine the regularity of party nominations, the deci

cision of party conventions, committees or caucuses are not binding and have no weight with the court. Matter of Broat (1894), 6 Misc. 445, 27 N. Y. Supp. 176; In re Heacock (1896), 18 Misc. 311, 41 N. Y. Supp. 161.

It is obviously impracticable for a board of elections, in the first instance, to procure a judicial determination of all questions arising with reference to the validity of every certificate of nomination, and where the board finds, on inspection, that a certificate of nomination is apparently so defective as to make it improper that the name of the candidates should be printed on the official ballot, orderly procedure requires that the board cause the candidate to be notified that his name will not so appear and leave it to him, if so advised, to apply to the court under § 125 for such an order in the premises as justice requires. Matter of Murphy (1919), 109 Misc. 68, 179 N. Y. Supp. 619.

While it is the duty of a board of elections to see that no name is improperly placed in nomination, it cannot, before registration is complete, finally decide whether or not a candidate's name should appear on the official ballot. Matter of Murphy (1919), 109 Misc. 68, 179 N. Y. Supp. 619.

Jurisdiction. Under this section a court or judge has nothing to review unless there is a determination made by the board of elections in respect to the nomination of candidates. Matter of Candidates for Member of Assembly in 32d Dist. (1905), 108 App. Div. 361, 95 N. Y. Supp. 616.

The judicial district or county, within which to review the determination of the filing officer upon a contested certificate of nomination, is the district or county within which the complainant and respondent reside and where the transaction arose which was the subject of the determination. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624.

· A political convention is a law unto itself, but, where the duty is cast upon courts and judges to determine the regularity and fairness of political methods, those methods must be subjected to the same tests as would those of any other body of men whose good faith is questioned, and no court or judge would be justified in sustaining them when found to be inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they be recognized and approved by senatorial and state conventions of the same political organization. Matter of Woodworth (1891), 16 N. Y. Supp. 147.

It is not in the province of the court to decide abstract questions of law in proceedings to review the determination of an official filing certificate of nomination, which could have no effect upon either candidate or upon the election. Matter of Woodworth (1892), 64 Hun 522, 19 N. Y. Supp. 525.

The question whether a person named in a certificate for an independent nomination is disqualified from election as member of assembly cannot be determined in a proceeding to review a determination of filing officers. Matter of Independent Nominations (1906), 186 N. Y. 268, rev'g 103 App. Div. 463. Neither the Supreme Court nor a justice thereof has jurisdiction under this section to entertain a summary proceeding to determine the sufficiency of a petition filed by the town clerk, requiring the submission of local option questions to the electors of a town. Matter of Town of Newburgh (1904), 97 App. Div. 438, 89 N. Y. Supp. 1065.

A citizen and prohibitionist voter who resides in the first judicial district may review there the adverse determination of the secretary of state although be resides in the third judicial district. Matter of Gillespie v. McDonough (1903), 39 Misc. 147, 79 N. Y. Supp. 182.

An application for an order overruling the decision of an officer with whom a certificate of nomination is filed is a special proceeding as defined by the Code of Civil Procedure, and the general term may entertain an appeal from an order affirming or overruling the determination of such officer, when the appeal can be heard and determined in due season. Matter of Mitchell (1894), 81 Hun 401, 30 N. Y. Supp. 962.

An order by a justice of the Supreme Court determining the right to file a certificate and reviewing the original determination of the county clerk, is appealable to the appellate division of the Supreme Court. Matter of Emmett (1896), 150 N. Y. 538, 44 N. E. Rep. 1102, rev'g 9 App. Div. 237; Matter of Mitchell (1894), 81 Hun 401, 30 N. Y. Supp. 962.

Under the provisions of section 56 of chapter 680 of the Laws of 1892, as amended in 1895, a judge of the Superior Court, of Buffalo, had power to make an order requiring a county clerk to file certificates of nomination and

reversing the decision of county clerk that the certificates were not entitled to be filed. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388. Upon an application to a justice of the Supreme Court to correct an alleged error of the commissioner of elections of Onondaga county in rejecting and refusing to file a petition for the nomination of a candidate, the justice will not be justified, from a mere inspection of the petition, in rejecting names and reducing the number below that fixed by the statute by inferring from the similarity of the handwriting that different names were signed by the same person; but, where the same name and address appear more than once, it is to be presumed that the several signatures represent but one person and but one should be counted. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

Where the same name and address appear upon two petitions naming different candidates for the same office, the signature upon the petition first filed should be recognized. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

The justice may take judicial notice of the fact that a town or county designated as the residence of a signer of a petition for the nomination of a member of assembly is not included in the assembly district, or a street so designated is wholly outside its boundaries; but the court cannot take judicial notice of the fact that, where a street is partly in and partly outside the assembly district, a given number on the street is outside such district. Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

Upon an application under this section and § 134 for an order decreeing a certificate of independent nomination insufficiet to meet the requirements of § 123, the court must make such decision and order as justice may require. Matter of Lynch (1919), 108 Misc. 668, 178 N. Y. Supp. 30.

The provision stating that the final order of the Special Term determining the validity of an independent certificate of nomination must be made on or before the twelfth day preceeding the day of election is directory and not mandatory and the court has jurisdiction of an application for a writ of mandamus to compel the board of elections to accept such certificate although the poceeding was instituted less than twelve days before election day. Matter of Greenwald v. Boyle (1917), 179 App. Div. 672, 167 N. Y. Supp. 154.

Party to review.-A county clerk has the right to institute proceedings for the review of an order commanding him to do an official act which he deems to be a violation of the statutes of the state, and the fact that he has no pecuniary, interest in the act does not affect his right to appeal. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388.

The provision of this section allowing a review upon the complaint of "any citizen" must be understood as referring to any citizen who has instituted a proceeding by filing objections with the officer filing the certificate of nomination. 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.

Time within which order may be made.-The provision that a final order must be made on or before the last day fixed for filing certificates for nominations to fill vacancies is directory and not mandatory, and where the court has acquired jurisdiction and the case has been submitted within the time required by the statute its order will be effectual although made after the expiration of such time. Matter of Hennessy (1900), 164 N. Y. 393, rev'g 54 App. Div. 180; Matter of Herman (1905), 108 App. Div. 335, 96 N. Y. Supp. 144.

After the time for filing certificates to fill vacancies has expired the jurisdiction of the court to entertain summary proceedings to review the determination of a commissioner of elections has terminated, and it will not entertain a proceeding to determine whether certificates are void or only defective when the time to correct defects has gone by. Matter of Independence League Nominations (1906), 51 Misc. 486, 100 N. Y. Supp.

760.

The expiration of the time for filing certificates of nomination to fill vacancies does not impair the jurisdiction of the appellate division on an appeal from an order reviewing the determination of the county clerk as to which of two nominees for office was the regular nominee of a

given party. Matter of Emmett (1896), 150 N. Y, 538, 44 N. E. 1102, rev'g 9 App. Div. 237.

The provision of the statute that the order reviewing the determination must be made on or before the last day fixed for filing certificates of nominations to fill vacancies, applies to the original order which is appealed from, and the appellate division can review this order and make a determination of the appeal after that date. Matter of Emmett (1896),. 150 N. Y. 538, 44 N. E. 1102, rev'g 9 App. Div. 237.

The provision of this section (prior to the amendment of 1914) that an order of the Supreme Court relating to the sufficiency of a petition for an independent nomination must be made within fifteen days of the election is merely directory, and objections to a petition for an independent nomination for the assembly filed on the day registration was completed or as soon as the validity of the petition could be ascertained is sufficient. Matter of Stoddard (1913), 158 App. Div. 525.

Use of word "progressive." - The use of the word "progressive" by any organization other than "the National Progressive party" though in conjunction with other names would tend to create confusion and å loss of votes through inadvertence on the part of some electors, and under this section the court has jurisdiction to pass upon the right to the use of said word in a certificate of nomination. Matter of Kaufman (1912), 78 Misc. 72.

126. Supplying omitted emblems.

If a party or independent body shall have nominated candidates to be voted for by the voters of the entire state, in any year, and shall have no device or emblem, selected and certified as required by this chapter, to distinguish such candidates, it shall be the duty of the secretary of state to select a device or emblem for that purpose, and such device or emblem so chosen shall be used to distinguish all candidates of that party or independent body throughout the state, whether such candidates are nominated for state or local offices; and if any certificate of nomination of candidates to be voted for by the voters of a district less than the entire state shall be filed with the secretary of state, or with any public officer pursuant to this article, by an independent body, or if nominations for such offices be made by a party, which independent body or party shall have made no nomination of candidates for offices to be filled by the voters of the entire state, and such independent certificate of nomination shall omit or the state committee of such party shall have omitted to select a device or emblem to distinguish the candidates thus nominated, it shall be the duty of the secretary of state or other public officer with whom an independent certificate of nomination for such offices is required by this chapter to be filed to select a device or emblem to represent such candidates.

Derivation: Election Law, pt. of § 56, as amended by L. 1898, ch. 235; L. 1901, ch. 654. Amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

$127. Places of filing certain certificates of nomination.

1. Independent certificates of nomination, and certificates of party nominations made by conventions, of candidates for office to be filled by the voters of the entire state, or of any division or district greater than a county, shall be filed with the secretary of state, except that each such certificate of nomination of a candidate