In re the Certificates of Nomination of Smith & Solomon

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 *294in 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.