We should not by judicial amendments legislate out of existence what the Legislature clearly and expressly enacted as the law. Whether a candidate who has the nomination of two regular parties should be entitled to a third column on the voting machine when nominated by an independent body is for the Legislature and not for the courts to decide. And the Legislature has spoken. Section 248 of the Election Law provides that such a candidate may not have an additional line.
True, the Court of Appeals in the Matter of Belford v. Board of Elections of Nassau County (306 N. Y. 70) did, by a divided court, allow an extra line to a candidate having the nomination of more than one regular party. However, it did so because the independent party nominating such candidate had signatures corresponding to almost 22% of the entire electorate — a most unusual circumstance — and it therefore accepted a finding of the Appellate Division that a ‘1 strict observance of the letter of section 248 * * * would interfere unnecessarily with the intelligent and ready expression of choice by an independent voter.” (282 App. Div. 891.) Nor was the court obliged to consider the practical problem of space limitation on the machine with which we are here concerned. However, in any event, subsequent to this decision the Court of Appeals refused to grant an independent line to a candidate already nominated by two accredited political parties, where it appeared that such candidate had signatures amounting to but 1.6% of the voting population (Matter of Lazer v. McNab, 19 A D 2d 830, affd. 13 N Y 2d 935). It is to be noted that in the present case the independent petition bears signatures of approximately 1.9% of the voting electorate. Accordingly, it would seem that it would come within the most recent holding of the Court of Appeals above referred to.
We should not deviate further from the law as enacted by the Legislature. As Judge Fuu> said in his dissenting opinion in the Matter of Belford (supra, p. 73): “ To hold — as the court *66is now holding—that respondent is entitled to have his name appear in a separate row for the independent body goes far toward nullifying section 248 of the Election Law. ’ ’ And indeed it would. If the decision in Matter of Belford would go “ far toward nullifying section 248 ” then the holding of the majority here would complete the process and effectuate nullification.
I might observe that the cause of independent nominations is not being served by giving an extra place on the ballot to one who already has two regular party nominations. To do so would make it possible for the regular political parties, by the device of creating “ independent ” bodies, to usurp nearly all the lines of the voting machine thereby crowding truly independent bodies into one line. The possibility of such distorted use of independent petitions demonstrates the wisdom of the Legislature in enacting the relevant portion of section 248 of the Election Law.
While I am of the opinion that the statute precludes the granting of a third line I am also of the opinion that a literal application of the statute does not offend the equities. Is it inequitable to refuse to give a third line to a candidate who already has two places on the machine ? How many lines does this candidate need? None of the other candidates have in excess of two lines. Further, the statement that over three million pieces of literature associating this candidate with Line E has already been mailed is of no relevance. Such activity in no way resulted from any laches on the part of those who attack the decision to give him an extra line. Immediately upon the Board of Elections having indicated that such extra line would be given there was a protest filed, and since that time there has been no delay in proceeding to review such decision. Thus the mailing of that literature cannot serve as a basis upon which to estop the petitioner from asserting a clear statutory right. The candidate must bear the consequences of his reliance upon a decision that was still under attack and in the process of being reviewed. In any event and as a practical matter I cannot believe that the electorate is so ignorant or so lacking in intelligence as to vote Row E blindly merely on the basis of that mailing. There will be no prejudice by confining this candidate to two lines on the machine. Those who wish to vote for him will not have to look too hard to find him. However, in view of the statement that the Independent Citizens party had mailed three million circulars and to avoid any possibility that the one who we must realistically recognize as being his most serious rival may receive the benefit of such mailing—although I do not think that there would be any benefit obtained—I would not place the *67Civil Service Fusion party on Bow E but, in the exercise of allowable discretion would place it in Bow Gr.
Accordingly, I would modify the order to the extent of directing that the Civil Service Fusion party be placed on Line Gr and that those parties which are now assigned to Line Gr be placed in Line E, and as so modified I would affirm.
McNally, Stevens, Steuer and Staley, JJ., concur in Per Curiam opinion; Babin, J. P., dissents in part and votes to modify by placing the Civil Service Fusion party on Line G and those now listed on Line G to be placed on Line E.
Judgment modified, on the law, on the facts and in exercise of discretion, so as to set up eight lines. . Line E remains for the Independent Citizens party. Line F is assigned to the United Tax Payers party. Line G is assigned to the Civil Service Fusion party. Line H is assigned to the other remaining independent bodies. The judgment is otherwise affirmed, without costs or disbursements to either party.