
    (May 17, 1960)
    In the Matter of Carol Greitzer, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents.
    Order dismissing petition and supplemental petition is unanimously affirmed, without costs. Petitioner seeks an order directing the Board of Elections to assign by lot, in accordance with subdivision 2 of section 104 of the Election Law, the order in which the names of the various candidates in the Democratic party primary election shall appear upon the voting machines. It has been asserted, without contradiction, that there are primary contests in thousands of election districts throughout the city. It has been amply demonstrated that the voting machines presently in use by the city cannot be utilized or adapted so that positions may be drawn by lot and yet present the names of the opposing candidates in such orderly fashion that many voters will not be confused or misled. Also, petitioner has not shown that the formula devised by the Board of Elections, as reflected in its resolution under attack herein, is not calculated in good faith to assign the positions as fairly as possible under the hampering circumstances of the mechanical limitations of the machines. Were the resolution to be stricken, which is the relief virtually sought by petitioner, contests in the primaries of all parties in most of the election districts in the city will be affected vitally; and, as stated at Special Term, might result in chaos and confusion. The Board of Elections, presumably possessed of expertise in this area has in effect held that the provisions of section 104 of the Election Law are not practicable for application to the type of voting machine presently in use by the city (see Election Law, § 265) and therefore properly exercised the discretion given under subdivision 7 of section 242-a of the Election Law. Concur — Botein, P. J., Breitel, Rabin, Yalente and McNally, JJ.
     