#### In the Matter of Richard L. Ottinger, Petitioner, *v.*John P. Lomenzo, as Secretary of State of the State of New York, et al., Respondents.

Supreme Court, Trial Term, Albany County,

September 16, 1970.

*Frederic Block*for petitioner. *Jack B. Muratori*for John P. Lomenzo, respondent. *Henry 8. Middendorf, Jr.,*for J. Daniel Mahoney, respondent. *Serphin Maltese*for J ames L. Buckley, respondent. No appearances for Charles E. G-oodell, John Emanuel, Arnold Johnson and Kipp Dawson, respondents.

A. Franklin Mahoney, J. J.

Daniel Mahoney, a respondent in this proceeding and also State Chairman of the 'Conservative Party, filed objections and specifications delineating the nature of the objections to the nominating petition designating Richard L. Ottinger as the candidate for the office of United States Senator of the Conservation Party.

A hearing was held on the objections at the office of the Secretary of State on Friday, September 4, 1970. Following the hearing and on the same day, a decision was given by the Secretary of State sustaining the objections and holding the petition to be null and void. The Secretary stated ‘ ‘ that the name selected for the independent body, namely the Conservation Party, includes most of the name of the Conservative Party, a recognized party of the State of New York, and therefore is in violation of Section 138(4) of the Election Law.” The Secretary also found the two names, Conservation and *104Conservative, to be so similar that *“*the tendency to confuse and mislead voters and the general public is readily apparent.”

Subdivision 4 of section 138 of the Election Law, in pertinent part, states, “ The name selected for the independent body making the nomination shall be in the English language and shall not include the name or part of the name, or an abbreviation of the name or of part of the name, of a then existing party”.

In support of his position that the word Conservation includes part of the word Conservative, the Secretary cites *Matter of Social Democratic Party*(182 N. Y. 442 [1905]) and *Matter of Marcantonio*v. *Heffernan*(192 Misc. 868 [1948], affd. 274 App. Div. 880, affd. 298 N. Y. 661). In the first case the name Social Democratic Party was rejected because it conflicted with the name of the Democratic Party. In the *Marcantonio*case the name United Laborite Party was enjoined because of a conflict with the name of a then established party, the American Labor Party. The reasons for the rejection in each of these cited cases are too patent to require discussion.

However, in the case at bar we have two separate and distinct words. That they are similar in spelling and, perhaps, in connotation is undeniable. Each conveys by definition and by ordinary meaning the intent of preservation, one of ideals or principles and the other of natural resources. However, it is similarly undeniable that each has taken on a special, colloquial meaning that sharply distinguishes one from the other. The word “ Conservative ” and the party it identifies has, over recent years, come to stand for a political philosophy that abhors unbalanced governmental budgets, excessive spending and fiscal policies that burden the future with debt. The word “ Conservation ” has not heretofore been allied with any political party but in today’s society it has, through extended and repetitive use in all communications media, taken on a meaning far beyond its ordinary negative import. Today, “ Conservation ” not only means to preserve and to retain, it is also identifiable with a movement in this (Nation urging affirmative, positive steps to curb pollution, to cut back on the use of pesticides, to purify our waters and, generally, to clean up our atmosphere. The movement is so widespread, its adherents so numerous and its righteousness so obvious that it is not surprising that its supporters seek to become a political party. The word they selected to identify their fledgling party, while similar in spelling and in pronunciation to the word “ Conservative ”, is distinct and singularly descriptive of the objectives of the movement.

*105The English language has borrowed so heavily from the Latin and French vernaculars that its verbiage contains thousands of words of different meanings or subtle distinctions that are yet very similar in spelling and pronunciation. The normal schooling received by the overwhelming majority of the American people removes the difficulties and arms most Americans with an ability to read and articulate and a lesser number with a skill productive of scholarly works. In brief, the ability of our citizens to distinguish between apparently similar words is beyond questioning, particularly when each of the words through protracted use has established a singular connotative import that makes them peculiarly distinctive. The words, “Conservation” and “Conservative” are not confusingly similar and will not, in my view, mislead members of the electorate. Further, the word “Conservation” does not ‘ ‘ include the name or part of the name, or an abbreviation of the name or of part of the name ” of the word “ Conservative ”.

Therefore, the Secretary of State is hereby ordered to validate the subject petitions and place the name of Richard L. Ottinger as candidate for the office of United States Senator on the Conservation Party ballot.