
    Matter of the Certificates of Nomination of Anthony Smith and Charles Solomon.
    (Supreme Court, New York Special Term,
    November, 1901.)
    Elections — Certificates of nomination — Dispute as to the right to use party name and emblem, how determined.
    Where a dispute has arisen under the Election Law (L. 1901, ch. 654, § 3) as to which of two or more different political parties or independent bodies, who in their certificates of nomination have designated the same device or emblem or party name, is entitled to the use of the same, the officer with whom the certificates have been filed must decide the same by determining as a fact the “ priority of designation in the case of the device or emblem, and of use in the case of the party name ”— irrespective of the filing of the certificates.
    The court accordingly held, in confirmation of the decision of the board of elections, that, upon sufficient proof that the “ Citizens’" Union ”.of New York city, an independent body, had in the election® of 1897 and 1899 used that title as a party name and the statue of liberty as an emblem, other persons, who had never used either, could not, in the election of 1901, adopt' both and by a prior filing of their certificate attempt to put their candidates in nomination as representatives of the “ Citizens’ Union ”,
    Objections filed with the Bureau of Elections, by a political organization known as the “ Citizens’ Union,” to the certificates of nomination of Smith and Solomon.
    Henry M. Goldfogle, for certificates.
    Edward B. Whitney, for Citizens’ Union.
    Julius M. Mayer, for Republican party.
    Terence Farley, Assistant Corporation Counsel, for Board of Elections.
   Bischoff, J.

The certificate in support of which this application proceeds was filed with the board of elections on October first, and contained the designation of the party name “ Citizens* Union” and, as an emblem, the statue of liberty. Concededly the persons signing the certificate had not theretofore used this-name and emblem for political purposes or for any other purpose, and the board of elections have rejected the certificate agreeably to a protest filed by a political organization known as the “ Citizens’ Union,” and which had adopted and used this same name and emblem for the elections of the years 1897 and 1899. Under section 56 of the Election Law (amd. L. 1901, chap. 654, § 3) a dispute arising through the substantial identity of names or emblems chosen by two or more political parties or independent bodies is to be determined by the officer with whom the certificates of nomination are filed, “being 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.” Evidently “ priority of designation and use ” does not mean strict priority in filing of the certificate for purposes of the election of the current year. If it did, a direct statement to that effect in the statute would naturally be looked for, since a simple means of- determining the dispute would then be afforded. The matter evidently depends upon the priority in use and designation, as a fact, and this leaves open an inquiry into the substantial rights of the contesting parties to the name and emblem for election purposes. This construction was adopted, in the case of People ex rel. Andrews v. Sutphin, by Mr. Justice Gaynor (October 25, 1897), as appears from the order submitted, and, I think, is the only construction possible. The facts presented to the board of elections sufficed to support their determination of the disputed right favorably to the protesting party, and there is no ground for a reversal of that determination by this court upon the record produced.

Motion denied.  