#### In the Matter of the Objections to the Independent Certificate Filed Purporting to Nominate William Baillee for Mayor of the City of Cohoes.

(Supreme Court, Albany Special Term,

October, 1912.)

Election Law, § 123 — certificate of independent nomination.

The provision of section 123 of the Election Law, that *“ No*separate sheet comprising an independent certificate of nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such slieet are fraudulent or forged,” has no application to a signer who has failed to register, the statute itself providing that his name shall not be counted, and the court is not warranted in holding such failure to be a legal fraud within the meaning of said' section. The duplication of names, however, must be regarded as fraudulent under the statute and the same cannot be counted wherever such duplication appears.

Objections to a certificate of independent nomination,

Charles B. Templeton, for objectors.

Walter E. Wertime, for respondent.

Chester, J.

Although the objector insists that the statute requires 800 electors to make a valid certificate for the. independent nomination for mayor, it may be assumed for the purposes of this case that 500 only are requisite as claimed by the counsel for the respondent. The certificate in question bears 548 names of persons on 63 separate sheets who appear to have taken the oath prescribed by law. Of these 23 are names of persons who are not registered so as to entitle them to vote at the ensuing election, and *7*are duplications or names of persons who have signed twice.

It is urged by the objector that all these names are subject to the provision of the Election Law (§ 123) that “no separate sheet comprising an independent certificate of *85nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such sheet are fraudulent or forged.”

This is a drastic provision and is aimed at procuring honesty in the preparation and filing of these certificates. Its validity has been upheld by the courts. Matter of Brooke v. Terry, 146 App. Div. 520; affd., 203 N. Y. 293.

I cannot agree however with the contention of the objectors that this five per centum rule can properly be made to apply to the signers who have failed to register, primarily for the reason that the statute itself provides what the effect of such failure shall be and that is that his name shall not be counted. Election Law, § 123. The failure to register might arise from causes entirely beyond the control of the person signing’ and for which the persons instrumental in procuring signatures to the certificate were in nowise responsible. I conclude, therefore, that I would not be warranted in holding such failure to be a legal fraud within the meaning of the clause quoted. Twenty-three names only should be deducted from the certificate on this account.

I think that the duplications of names must be regarded as fraudulent under the statute and that the five per centum rule applies. It may be conceded that most of these electors did not intend, as most of them have testified, to sign twice and they did not intend to commit any wrong by so doing, yet that should not change the rule. It is the act and not the intent, sworn to after the discovery of the act, that should govern. The law will not sanction repeating upon a certificate for independent nominations any more that it will at a primary or at an election. An inspection of the certificate would at once reveal to a careful observer the duplication of the names, and yet no adequate precautionary measures were taken to prevent a duplication of names on the certificate nor to erase any of them therefrom before it was filed. The burden is on those instrumental in procuring the execution of certificates like these to keep them free from dishonesty and fraud if they are to save them from *86the effect of the drastic provisions of the statute which have been made to safeguard the public interests.

The duplication of the names being fraudulent within the meaning of the statute they cannot be counted in either place where they appear and all the names on every separate sheet upon which five per centum of such names appear must be eliminated in the count.

These seven duplicated names appear on eleven separate sheets containing 110 other names, on each of which sheets, except two, five per centum of the names are fraudulent. The two excepted sheets contain 42 names leaving 68 to be deducted besides 14 for the seven duplicates or 82 on this account. To these must be added the 23 who failed to register making 105 all told to be deducted from the 548 contained on the certificate leaving it short of the requisite number, even if 500 only are necessary.

The certificate must, therefore, be declared void.

Ordered accordingly.