In re the Objections to the Original Certificates of Nomination

105 A.D. 243

Opinion

Smith, J.:

By section 56 of the Election Law (Laws of 1896, chap. 909

Footnotes

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*) it is provided in substance that no political party has the right' to assume a name “ the same or substantially the same ” as that of a party with the right to its use established. By section 65 of that law a written objection may be filed to the use of a name which is claimed to be in violation of this rule. Such an objection was duly filed by this appellant to the use of the name the Ci Social Democratic Party ” as being so similar to the name the “ Democratic Party” as that its use was unauthorized within the statute. Section 56 of the Election Law aforesaid provides for the determination of this question, first, by the officer with whom the certificate is filed, and then provides that “ the Supreme Court or any justice thereof within the judicial district, or any county judge within his county, shall have summary jurisdiction upon complaint of any citizen to review the determination and acts of such officer and to make such order in the premises as justice may require * * *.” The appellant first contends that the proceeding before Mr. Justice Howard was unauthorized because made upon the complaint of one who had not filed an objection to the party certificate. But the right of appeal given by the statute seems to be given to “ any citizen.” Under such comprehensive'language we would be unjustified in confining that right to one who had filed objections to the certificate. We are not unmindful of the complications that might arise from this interpretation of the statute. Should we by forced construction interpret the statute as the appellant here contends that it should be interpreted, another year would find more objections to the certificate, and the same complications would he presented as are now presented by our holding that the right of review is given as expressed in the statute to “any citizen” whether or not such citizen originally filed objections to said certificate.

But to reverse this order the appellant has the further burden of showing that the Secretary of State erred in permitting the filing of the said party certificate. It is strenuously insisted that the name “ Social Democratic Party ” is substantially the same as the name “ Democratic Party,” and that, therefore, the certificate should not have been filed. This question, however, we deem foreclosed by authority. In Matter of Greene (9 App. Div. 223) it appeared that a party which had been theretofore known as the “ Democratic Party Reform Organization,” in October, 1896, filed certificates of nomination for Rational and State tickets under the name “ Rational Democratic Party.” This was objected to under the same provision of law under which the objection was filed in the case at bar on the ground that the name “Rational Democratic Party ” was substantially the same as the name “ Democratic Party.” The same party in October, 1896, nominated a candidate for the office of Member of Assembly for the first assembly district of Rings county and the same objection was filed with the board of elections of the city of Brooklyn. Said board determined that the political party name “ Rational Democratic Party ” was substantially the same name as the name “ Democratic Party.” The court there held that notwithstanding the name was assumed in a year in which there was a Rational election, the names were not substantially the same and that the board of elections erred in deciding that the political party name “Rational Democratic Party” was substantially the same name as the name “ Democratic Party.” This decision was affirmed in the Court of Appeals in 150 Rew York, 566, without opinion. In the Appellate Division two judges dissented, arguing, although using the name of the “ Independent Republican ” party for the name “ Independent Democratic ” party, that while the name “Independent Democratic Party” or “Reform Democratic Party ” might not be substantially similar to the name “ Democratic Party,” nevertheless in a year when there was a Rational ticket the name “Rational Democratic Party” was substantially the same as the name “ Democratic Party.” It thus appears by the decision ■as well as by the reasoning of the dissenting judges that the name “ Social Democratic Party ” cannot be held to be substantially the same as the name “ Democratic Party.” The argument of the appellant that such was not the real ground of the decision in the case cited is, we think, untenable.

We are, therefore, of opinion that this order must be sustained both upon the ground upon which it was placed by the learned justice at Special Term, and also upon the ground that the- appeal lias no substantial merit. Order affirmed, without costs.

All concurred.

Order affirmed, without costs.

See Laws of 1866, chap. 909, § 56, as amd. by Laws of 1901, chap. 651.— [Rep.