135 N.Y.S. 62 | N.Y. App. Div. | 1912
On the 9th of March, 1912,' certain members of the Republican party filed with the board of elections petitions designating candidates to be voted for at the primary election, and selected as the emblem to distinguish the candidates designated by such petitions a representation of the Statue of Liberty. The petitioner is the chairman and chief executive officer of the Citizens’ Union, a membership corporation, which for several years has participated in municipal elections in the city of New York and has used as its political emblem the symbol or emblem. selected as aforesaid.
The question has become academic, but it is likely to recur and should, therefore, be decided. . The terms “party” and' “independent body,” as used in the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd.), are defined by section 2,
The court possesses, and should attempt to exercise, only such power to interfere with the conduct of primary elections as is conferred by statute. Reference to sections 125 and 126, relating to conflicts in names and emblems at elections, emphasizes the point that the conflicts which are to: be determined in the first instance by the officer with whom the certificates are filed and whose decisions the “ Supreme Court, or any justice thereof within the judicial district, or any county judge within his county,” is given summary jurisdiction to review, are conflicts arising from the attempted use of the same names or emblems by two or more political parties or independent bodies which have filed certificates or petitions nominating candidates to be voted for at the same election.
The appellant relies upon the provision of section 125
The appellant undertakes to assimilate the rules governing this summary statutory proceeding to those applicable to an equity suit to enjoin unfair competition or the simulation of trade marks and. trade names. But the assimilation, if justified, must go further and take in the remedy. We do not mean to suggest that the appellant or the Citizens’ Union could have maintained a suit in equity to enjoin the use of its emblem at a party primary in which it could take no part, and hold only that in this summary proceeding the court has only such jurisdiction as is conferred upon it by statute.
The order should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
Renumbered section 3, and amd. by Laws of 1911, chap. 891.— [Rep.
See Laws of 1911, chap. 649, amending and materially changing said section 125.— [Rep.