Majority
p. 804(September 10, 1940.) In the Matter of Maurice A. Fitzgerald, Appellant, against S. Howard Cohen and Others, as Commissioners of the Board of Elections of the City of New York, Respondents, for an Order Declaring Valid, Proper and Legally Effective and to Accept the Designating Petitions Filed with the Board of Elections Designating the Petitioner, Maurice A. Fitzgerald, as a Candidate in the Democratic Primaries for the Office of Sheriff of Queens County, and to Compel the Printing of the Name of Petitioner on the Official Democratic Primary Ballots for the Office of Sheriff of Queens County and to Restrain the Board of Elections from Printing, Distributing and Using in the Democratic Primaries Any Ballots Not Containing the Name of Petitioner as a Candidate for Such Office.
The parties having agreed in open court that this appeal may be decided by a court of four justices, the decision is as follows: Order denying petitioner’s motion to compel the board of elections to print petitioner’s name on the official Democratic primary ballot for the office of sheriff of Queens county, and restraining the board of elections from printing, distributing and using in the Democratic primaries any ballots not containing the name of petitioner as a candidate for such office, affirmed, without costs. No opinion. Motion for leave to appeal to the Court of Appeals granted. Lazansky, P. J., Hagarty, Johnston and Close, JJ., concur.