Majority
p. 960In the Matter of the Application of Earl J. Keough and William C. Schultz, Jr., for an Order Striking Out as Invalid and Void a Petition Purporting to Nominate Israel Amter for Governor, Frank Herron for Lieutenant Governor, Fred Briehl for Comptroller, Benjamin J. Davis, Jr., for Attorney-General, Robert Minor for Representative-at-Large in U. S. Congress from New York State, Elizabeth Gurley Flynn for Representative-at-Large in U. S. Congress from New York State, and Other Persons for Public Office as Candidates of an Alleged Independent Body Designated the “ Communist Party,” and the Individuals Named Therein as a Committee to Fill Vacancies, Filed in the Office of the Secretary of State on the 29th Day of August, 1942; and Directing that the Names of Candidates on Said Petition Shall Not Be Placed on the Official Ballots to Be Used in the Election to Be Held November 3rd, 1942; and for Other Relief. Israel Amter, Benjamin J. Davis, Jr., and Elizabeth Gurley Flynn, Appellants; Earl J. Keough and William C. Schultz, Jr., Respondents.
Appeal from a temporary order restraining the Secretary of State from certifying the nominations made by the “ Communist Party.” Order reversed on the law and facts. The court has considered such facts as are alleged in the petition and finds that sufficient are not pleaded. The order is reversed on that ground and upon other grounds. Hill, P. J., Crapser and Hefiernan, JJ., concur; Schenck and Foster, JJ., dissent. [ 179 Misc, 1 .]