
    William Jay Schieffelin, Appellant, v. J. Gabriel Britt and Others, Constituting the Board of Elections of the City of New York, and Others, Respondents.
    First Department,
    May 3, 1912.
    Elections — primary elections — use of party emblem — contest by “independent body.”
    The provisions of chapter 891 of the Laws of 1911, governing primary elections, relate exclusively to “party” nominations and not to those of “ independent bodies ” which nominate candidates Only by petition and take no part in primary elections.
    Hence, the provisions of said statute relating to party emblems used in primary elections and the determination of conflicts in regard thereto, do not empower the election board, ór the Supreme Court, to determine the right to the use of a party emblem at the instance of an “independent body.”
    The court possesses and should attempt to exercise only such power to interfere with the conduct of primary elections as is conferred by statute.
    Appeal by the plaintiff, William Jay Schieffelin, from an order of the Supreme Court, made at the -New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1912, denying an application to restrain the board of elections from preparing ballots for use at the primary election of March 26, 1912, with the emblem of the Citizens’ Union thereon.
    
      Albert S. Bard, for the appellant.
    
      Terence Farley, for the respondents.
   Miller, J.:

On the 9th of March, 1912,' certain members of the Republican party filed with the board of elections petitions designating candidates to be voted for at the primary election, and selected as the emblem to distinguish the candidates designated by such petitions a representation of the Statue of Liberty. The petitioner is the chairman and chief executive officer of the Citizens’ Union, a membership corporation, which for several years has participated in municipal elections in the city of New York and has used as its political emblem the symbol or emblem. selected as aforesaid.

The question has become academic, but it is likely to recur and should, therefore, be decided. . The terms “party” and' “independent body,” as used in the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd.), are defined by section 2, as amended by chapter 649 of .the Laws of 1911. The Citizens’ Union is an “independent body.” The provisions added by chapter 891 of the Laws of 1911, governing primary elections, relate exclusively to party nominations and elections to party positions, as, in the nature of the case, “independent bodies,” which nominate candidates only by petition, take no part in the primary elections. Section 57 (as' added by Laws of 1911, chap. 891) provides that the party emblem shall be used to designate the candidates selected by the committees of the party, and that contestants may select the emblem to designate their candidates by a representation thereof upon their petition, and that “An emblem chosen as aforesaid \i. e., by petition] may be any appropriate symbol, other than the coat of arms or seal of the State or of the United States, or the State or national flags, or any religious emblem or symbol, or the portrait of any person, or the representation of a coin or of the currency of the TTnited States, Or the party emblem of any party. Conflicts in emblems shall be determined, and omitted emblems supplied, in the manner, so far as .practicable, provided for by sections one hundred and twenty-five and one hundred and twenty-six of this chapter, in respect to emblems to be placed upon the official ballot.” The enumeration of party emblems excludes, by the familiar rule of construction, those of independent bodies. No conflicts can arise at a primary between parties and independent bodies, and the provision for determining conflicts in the use of emblems at primaries quite obviously refers fo conflicts arising from the attempted use of the same emblem by two or more parties, or the divisions thereof, taking part in the primary election.

The court possesses, and should attempt to exercise, only such power to interfere with the conduct of primary elections as is conferred by statute. Reference to sections 125 and 126, relating to conflicts in names and emblems at elections, emphasizes the point that the conflicts which are to: be determined in the first instance by the officer with whom the certificates are filed and whose decisions the “ Supreme Court, or any justice thereof within the judicial district, or any county judge within his county,” is given summary jurisdiction to review, are conflicts arising from the attempted use of the same names or emblems by two or more political parties or independent bodies which have filed certificates or petitions nominating candidates to be voted for at the same election.

The appellant relies upon the provision of section 125 to the effect that the officer required to decide a conflict in names or emblems shall be governed “as far as may be in his decision by priority of designation in the case of the device or emblem, and of use in the case of the party name,” and argues that a party or independent body first using a given emblem thereby acquires a proprietary interest therein. But the complete answer to that suggestion is that but one party or a single division thereof attempted to use the emblem at the primary and hence there was no conflict and no question arising thereon which the election hoard had the power to determine in the first instance or which the Supreme Court was given jurisdiction to determine by a summary review.

The appellant undertakes to assimilate the rules governing this summary statutory proceeding to those applicable to an equity suit to enjoin unfair competition or the simulation of trade marks and. trade names. But the assimilation, if justified, must go further and take in the remedy. We do not mean to suggest that the appellant or the Citizens’ Union could have maintained a suit in equity to enjoin the use of its emblem at a party primary in which it could take no part, and hold only that in this summary proceeding the court has only such jurisdiction as is conferred upon it by statute.

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       Renumbered section 3, and amd. by Laws of 1911, chap. 891.— [Rep.
     
      
       See Laws of 1911, chap. 649, amending and materially changing said section 125.— [Rep.
     