McNulty v. May

— Appeals from a judgment of the Supreme Court at Special Term, entered September 30, 1976 in Albany County, which granted petitioner’s application, in a proceeding pursuant to section 330 of the Election Law, to compel the appellant State Board of Elections to accept, as filed, his independent nominating petition. Petitioner is the Democratic and Liberal Party candidate for member of the Assembly from the 106th Assembly District. On September 13, 1976 petitioner filed an independent nominating petition designating him as a candidate for the same office under the name "Anti-Lulu Party” with an emblem consisting of a caricature of a woman commonly known and depicted as "Lulu” with an "X” across the face of the emblem. The appellant State Board of Elections refused to accept petitioner’s independent nominating petition unless he selected a new name and emblem on the ground that the name "Anti-Lulu” and the caricature of "Lulu” were improper and constituted electioneering in the polling area (Election Law, §§ 20, 138, subd 4; §§ 161, 193). The purpose of the statutory provisions concerning the name and emblem selected by an independent body is to prevent confusion in the minds of the voters in connection with the election machinery (Matter of Ottinger v Lomenzo, 35 AD2d 747). Merely because the name or emblem selected by an independent body depicts an issue does not make such name or emblem confusing nor does their presence on the ballot constitute electioneering. The emblem selected *781by the Anti-Lulu Party, however, is a caricature of a woman commonly known and depicted as "Lulu” with an "X” across the face of the emblem. Since "X” appears in various places in the voting machine and is used to draw a voter’s attention to particular items, such a mark is misleading and confusing (Matter of Steinberg v Meisser, 64 Mise 2d 212; Matter of Ingraham, 121 Mise 578). Accordingly, the "X” across the face of the emblem selected by the Anti-Lulu Party is improper. The petitioner has previously indicated a willingness to alter the emblem by substituting a slash for the "X” across the face of the emblem. Such an alteration would eliminate any confusion. Judgment modified, on the law and the facts, so as to provide that the emblem of the Anti-Lulu Party shall be the caricature of "Lulu” with a slash rather than an "X” across the face of the emblem, and, as so modified, affirmed, without costs. Koreman, P. J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.