
    In the Matter of the Application of Coleridge A. Hart.
    (Supreme Court, Kings Special Term,
    October, 1897.)
    Election Law —When a certificate of nomination by the secretary of state should not state that a candidate has been nominated to fill a vacancy, alleged to exist.
    The court will not compel the secretary of state to certify to a board of elections that an independent nominee for justice of the Supreme Court in the Second Judicial District (an office alleged to be vacant because it was filled at the general election held November 3,/ 1896, in alleged violation of the Constitution of 1894, article 6, section 4, “ less than three months after the vacancy ” occurred by the death of the incumbent on August 3, 1896), was nominated, by the certificates, in the words “to fill va'cancy in place of Calvin E. Pratt, deceased,” as, where more than one justice is to be elected, nominees for the office cannot tie classified, and where a vacancy arises the justice is always elected for a full term; and, therefore, where the secretary of state certifies that the independent nominee has been nominated for the office, he is put upon an equality with all the other nominees and has been given all the rights, before the electors, to which he is entitled.
    Application for a mandamus to compel the secretary of state to certify to,the hoard of elections of the city of Brooklyn that the certificates of nomination of the petitioner by the Prohibition party and an independent body named “Independent Citizens^ Organization,” for justice of the Supreme Court in the Second Judicial District, filed in his office, are in words “ to fill vacancy in place of Calvin E. Pratt, deceased.” The secretary of state certified the nomination of the petitioner, but omitted this designation. The contention is that as Calvin E. Pratt, a justice of the Supreme Court, died on August 3,' 1896, the election of his successor at the general election on November 3, 1896, was void, for the reason that such election was “ less than three months -after the vacancy ” occurred, in violation of section 4 of article 6 of the state Constitution.
    Petitioner in person for motion.
    T. E. Hancock, Attorney-General, opposed.
   Gaynor, J.

If the contention of the petitioner be true, that it is in order to elect two justices of the1 Supreme Court at the coming election in the Second Judicial District, then every voter is free .to vote for two justices, and the law will conclusively presume that he knows his rights in that particular, and that he will- act and govern himself accordingly. People ex rel. Goring v. Trustees, 9 Misc. Rep. 246; 144 N. Y. 616. It would follow that the two candidates receiving the highest number of votes would be elected. The certificate by the secretary of state to the officials in each county and city who make up and print the ballots, that the petitioner was nominated to the office of justice of the Supreme Court, puts the petitioner, upon the ballots', as a candidate for justice of the Supreme Oourt on equal terms with all other nominees for that office; This is all he is entitled to The designation in his certificates of nomination, that he was nominated' “ to fill a vacancy in place of Calvin E. Pratt* deceased,” was surplusage. There is no way under the law to só classify nominee's for justice of the Supreme Court When more than one are to be elected, they are voted for indiscriminately for full terms, and those receiving the highest number of votes are elected.. The Election Taw provides for the designation upon the ballots of - the particular term each candidate for the same office is running for, only in cases where the several terms to be filled are of different length. However a vacancy, arises in the office of justice of the Supreme Court, the election is always for a full term. The application is therefore denied.

Application denied.  