The view taken by the majority of this court is the same as that taken by Judge Fuld and myself in Matter of Belford v. Board of Elections (306 N. Y. 70). It was expressly overruled by the majority of the court in that decision which cannot be effectively distinguished from the present, and which has obviously been relied upon by the respondents in the circulation and obtaining of a petition signed by more than the total enrollment of the Conservative party and nearly as many as the total enrollment of the Liberal party in the City of New York. In reliance upon that decision, respondents have in addition circulated millions of pamphlets, cards and reprints appealing to independent voters to vote Bow E for Mr. Lindsay for Mayor. Now, it would seem, the rules are being changed while the candidates are playing the game, in such manner that candidate Beame is transferred to Bow E which is the row which the independent Lindsay voters have been solicited to vote, and the independent Lindsay party denied a separate column.
In the Belford case it was held that independent voters would be disenfranchised who might wish to vote for the candidate of an established political party but not on that party’s line. That factor is present here in an even greater degree. I vote to affirm as held by the Appellate Division.
Opinion by Chief Judge Desmond in which Judges Dye, Scileppi and Burke concur, the last named in a separate opinion in which Chief Judge Desmond and Judges Dye and Scileppi concur; dissenting and voting to affirm: Judges Fuld and Van Voorhis, in separate opinions in each of which the other concurs; Judge Bergan concurs for affirmance for the reasons stated in the Per Curiam opinion at the Appellate Division.
Order of Appellate Division reversed and that of Special Term reinstated, without costs.