In re Brevillier

There are three appeals from three separate orders of the Special Term affirming pro forma, the decision of the board of elections overruling objections. The conclusions at which we have arrived are:

With respect to- the certificate .¡No. 1, which was the original nomination made by the Independence League and which contains the names of Breen and ¡Rosalsky in the. place and stead of Brady and McAvov, it is the certificate entitled to go under the name and emblem of the Independence League, with the omission of the name of Breen, who has declined in the manner required by the statute.*

As to the second petition, which is- signed by independent electors and which contains the entire Democratic ticket, including the names of Brady and MoAvoy, being supported by a sufficient number of electors to entitle them to a place on the official ballot, this is entitled to be placed in a separate column under a name and emblem to be selected as directed by the statute.†

In regard to the third certificate, which placed in nomination Brady alone for justice of the Supreme Court under the name and emblem of the Independence League, his name is not entitled to go under such name and emblem, but should be placed in a separate column with a name and emblem to be likewise selected as provided for by the Election Law. The obstacle to placing his name in the column and under the name and emblem of the Independence League is due to the fact that the Election Law provides that where *146there has been an original nomination, that nomination is complete on the filing of the certificate; and where,, as in-this- case,. the; nomination has been declined by the .filing of a declination as required by law, the procedure to be adopted to fill such vacancy where, as also in this cáse, the nominators have selected a committee for. that. purpose under' the law, is by such act - of such committee. In the present instance the comihittee failed and neglected to act, and- the time within which they could act has expired. An explanation is furnished,, perhaps,, by recalling that the law itself provides that the committee having the right to fill such vacancies is .prohibited from selecting the name of any person who has been named as a candidate of any other party or independent body. (Election Law [Laws-of 1896, chap. 909]* § 66, subd. 1, as amd. by Laws of 190.5., chap. 643.) It is clear that whát could not be done directly cannot be done.by indirection, and the effect of placing Mr. Brady’s' ñame under the name and emblem of the Iiidependence League, as the result of a certificate filed by independent voters, would he to accomplish that which could hot under- the law have- been accomplished if he had been named by the committee. There being no ' provision of law for the filling of a vacancy in the manner attempted here, it follows that the vacancy created by the declination has not. been filled, but that Mr. Brady is entitled tp have his name placed in a separate, column on the official ballot under a name and emblem to he selected according to law.

Present — O’Brien,. B. J.-, Ingraham, Laughlin, Clarke and Soott, JJ¿ ■ .s • • -