
    In the Matter of the Application of John J. Sammon. The Board of Elections of the City of New York, Respondent.
    First Department,
    October 23, 1909.
    Elections—filling vacancies on ticket — Election Law, section 130, construed.
    Where a person who has been duly nominated by more than one independent political body declines the nomination, the committee of one of the parties authorized to fill vacancies may replace him by a person who was selected by the committee of the other independent party.
    Section 136 of the Election Law, providing in substance that where a vacancy exists .in the ticket of an independent political body it shall not be lawful for any committee of such party authorized to make nominations or to fill vacancies to nominate or substitute the candidate of another independent party, does not apply in the circumstances aforesaid.
    Appeal from an order of the Supreme Court, made at the New York Special Term, denying a motion to compel the board of elections of the city of New York to place the name of John J. Sammon on the official ballot under the emblem of the Goddess of Justice and the name of Civic Alliance to be voted for at the next ensuing election as judge of the Municipal Court in the third district, borough of Manhattan, in the city of Mew York.
    
      W. L. Rathborne, for the appellant.
    
      Terence Farley, for the respondent.
   Per Curiam:

It appears that one George W. Collins was nominated by the regular Republican organization and by independent nominators, adopting the name and emblem of the Civic Alliance, for judge of the Municipal Court in the third district. Within the time allowed by statute Collins filed an instrument with the board of elections which that board received and which we consider to have been a sufficient declination of both nominations. Subsequently, and at the same moment there were filed with the board of elections nominations of John J. Sammon by the committee properly appointed by the Republican organization to fill vacancies and by the committee properly appointed by the Civic Alliance to fill vacancies. The board of elections refused to place Sammon’s name in both columns, resting their refusal upon section 136 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22).

That section, so far as material to the questions under consideration, provides as follows: “ When no nomination shall have been originally made by a political party or by an independent body for an office, or when a vacancy shall exist, it shall not be lawful for any committee of such party or independent body authorized to make nominations or to fill vacancies, to nominate or substitute the name of a candidate of another party oi* independent body for such office; it being the intention of this chapter that when a candidate of one party is nominatéd and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body.”

We do not think that the situation shown to exist in this case is within the prohibition contained in the provisions of section 136, above quoted. What was the expressed intention of that provision was to prevent the committee designated to fill vacancies from nominating to fill such a vacancy a candidate already nominated and on the ticket in the column of another party or independent body ; and thus presumably defeat the intention of the convention or nominators who named. the committee to fill vacancies. But where one person has been nominated by more than one convention or by more than one independent body, and that candidate retires, the committees authorized to fill vacancies can respectively fill this vacancy on the ticket over which it has jurisdiction, although the same person is also selected by the committee of the other party 'or independent body.

We think, therefore, that the nomination of Summon to fill the vacancy in both columns was valid, and that the board of elections should recognize it as a valid nomination for the office in both columns.

The order appealed from is, therefore, reversed, and the motion granted.

Present ■— Ingraham, Laughltn, Clarke, Houghton and Soott, JJ.

Order reversed and motion granted.  