
    In the Matter of Thomas Collins et al., Appellants, v. William D. Meisser et al., Constituting the Board of Elections of the County of Nassau, Respondents. In the Matter of Michael N. Petito et al., Appellants, v. William D. Meisser et al., Constituting the Board of Elections of the County of Nassau, Respondents.
    Argued June 6, 1968;
    decided June 6, 1968.
    
      
      Arthur D. Goldstein for appellants in the first above-entitled proceeding.
    I. Subdivision 2 of section 104 of the Election Law mandates the drawing of lots for each office and position to appear on the ballot. (Matter of Dent v. Power, 1 A D 2d 1039, 1 N Y 2d 825.) II. Section 108 requires the consecutive listing of candidates’ names under the party position or public office sought.
    
      John J. Nigro for appellants in the second above-entitled proceeding.
    I. The order on the ballot of all groups of designees for delegates to the Democratic National Convention must be determined by lot. (Matter of Dent v. Power, 1 N Y 2d 825.) II. The Board of Elections may not act arbitrarily or capriciously in the arrangement of the ballot in a primary election. III. Respondents’ arrangement of the ballot does violence to the primary system of election. (People ex rel. Coffey v. Democratic Committee, 164 N. Y. 335.) IV. The placement of a designee for United States Senate and a group of designees for delegate is arbitrary and capricious and in violation of the intendment of the Election Law. V. The Secretary of State has taken a position contrary to that of respondents.
    
      Morris H. Schneider, County Attorney (L. Charles Leonard of counsel), for respondents.
    I. The Board of Elections may exercise its discretion on how to use the voting machines for a primary election. (Mele v. Ryder, 8 A D 2d 390; Matter of Greitzer, 10 A D 2d 921; Matter of Jackson, 47 Misc 2d 918.) II. Petitioners have failed to serve necessary parties to this proceeding. (Matter of Schirmer v. Power, 21 A D 2d 885.)
   Memorandum.

The order in each case should be reversed, without costs, and the proceeding remanded to the Supreme Court for further proceedings in accordance with this memorandum. Where two or more persons are to be nominated for the same public office or to a party position at a primary election, any person so designated may require the appropriate election officials to determine by lot the order in which shall be printed on the official primary ballot ” their names as candidates (Election Law, § 104, subd. 2). Where the same designating petition contains groups of more than one person as nominees for the same office, position on the ballot may be determined by lot for the groups.

Petitioners in both proceedings include groups of candidates for delegates to the Democratic National Convention in certain congressional districts in Nassau County. In the first proceeding (Collins) the petitioners also include designees for separate offices, including District Attorney and congressional representative. All petitioners requested the Nassau Board of Elections that their positions on the voting machines to be used in the June 18 primary election be chosen by lot. The board refused this request and assigned the candidates to positions on the lines following the names of candidates for the United States senatorial nomination who, the board believed, represented political views harmonious with those of the respective groups of delegates and other candidates.

Although this was done in good faith, and with a sense of fairness, the right of the petitioners to request that their positions on the machine be fixed by lot, as provided by statute, could not be denied under the facts of this record (Matter of Dent v. Power, 1 N Y 2d 825; Matter of Rachlin v. Lomenzo, 17 N Y 2d 926; Matter of Tomczak v. Lawley, 17 N Y 2d 928).

Chief Judge Ftjld and Judges Scileppi, Bebgan, Keating, Bbeitel and Jasen concur; Judge Bubke taking no part.

In each proceeding: Order reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the memorandum herein.  