
    In the Matter of Dominic J. Baranello, Appellant-Respondent, v. Malcolm E. Smith, Jr. et al., Respondents-Appellants, and Everett F. McNab et al., Constituting the Board of Elections of Suffolk County, Respondents.
    Argued October 12, 1970;
    decided October 14, 1970.
    
      
      Frederic Block for appellant-respondent.
    
      Melvyn Tanenbaum for respondents-appellants.
    
      George W. Percy, Jr., County Attorney (Donald A. Rettaliata of counsel), for respondents.
   Order affirmed, without costs; no opinion.

Concur: Judges Scileppi, Bergan, Breitel, Jasen and Gibson. Chief Judge Fuld concurs on the ground that the question of the likelihood of confusion in thé minds of those who signed the nominating petitions containing the “ buckley” emblem was not raised below. Judge Burke dissents and votes to modify and grant the petition in all respects in the following memorandum : The standards established for the first time in Matter of Weisberg v. Lomenzo (27 N Y 2d 757) and Matter of Ottinger v. Lomenzo (27 N Y 2d 754) dictate the conclusion that the emblem set forth in -the nominating petitions was improper, as it could be the cause of confusion in the minds of the signers of the independent nominating petitions and thereby induce them to sign under the belief that Buckley was supporting these nominees exclusively. Therefore, the nominating petitions should have been invalidated.  