In re Fitzgerald

Kelly, J.

In the brief time within which the court must examine and decide the questions involved in this appeal, I can only state my conclusions and the reasons therefor in the most general way.

As to Mr. Fitzgerald’s objections to the certificates filed by Mr. Moran, the board of elections has overruled said objections. They are as follows:

1. That the place of residence of the electors signing the certificate is not stated. There are many signatures to which nothing beyond the street and number are added. Eo city, town, or village is mentioned. But as to many others the word “ Brooklyn ” is added, or ditto marks indicating Brooklyn, and affidavit is made that some 1,200 signatures contain the address. I find the fact to be that the requisite number of electors have added their place of residence to their signatures.

2; Objection is made that the signatures of 1,000 electors in the district are not contained upon one paper; that to read 1,000 signatures we must refer to a number of separate sheets; and it is objected that other persons are nominated, and for other offices besides that of congressman, upon the sheets of paper.

Section 57 of the Election Law expressly provides that K the signatures to the certificates of nomination need not all be appended to one paper.” It also provides, “ the certificate shall also contain the title of the offices to be filled, the name and residence of each candidate nominated.” There is no prohibition against naming more than one candidate upon a certificate; indeed, the language of the section indicates that certificates may name more than one office and candidate.

These are the objections of Mr. Fitzgerald which have been overruled.

Moran has filed objections to a certificate of independent nomination filed by Fitzgerald, who designates the balance scales as his emblem. Moran says his certificate designating this emblem was first filed and that, by priority of time, he is entitled to the emblem. He says the emblem represents the “ Independence League ” and he, and not Fitzgerald, is the candidate of the League and therefore entitled to the emblem.

The board of elections has sustained Mr. Moran’s objections.

On the question as to which candidate first filed the necessary certificate of 1,000 electors nominating him for congress, it might be difficult to say which of the two first had on file 1,000 legal signatures. But there is no doubt that the Independence League organization in Kings county had, prior to the filing of Mr. FitzgeraM’s certificate, selected the balance scales as an emblem and that numerous valid certificates of nomination for other offices had then been filed by the League, selecting the emblem described. It was the emblem of the League distinctively. Mr. Ihmsen and Mr. Powell, described as the official representatives of the League, make affidavit that Mr. Moran is the candidate of the League. It is also conceded that Mr. Fitzgerald is the regular candidate of the Democratic party. On all the facts, I think Mr. Moran has the prior right to use the emblem of the scales. The action of the board is affirmed.

(The above decision affirmed by Appellate Division, Second Department, without opinion, October 31, 1906.)