concurs on constraint of Matter of Cherry v Hayduk (49 AD2d 934) and Matter of Smith v McNab (35 AD2d 744), in accordance with the following memorandum, in which Mangano, J., concurs. Were we writing upon a clean slate, we would be inclined to adopt the view expressed by Justice Benjamin in his dissent in Matter of Smith v McNab (supra), and hold that section 7-104 (formerly § 248) of the Election Law does not require the exclusion from the Independence Party line of the petitioner’s name as a candidate for the office of District Court Judge in Suffolk County merely because he is also the candidate of the Democratic, Conservative and Right To Life parties (see Matter of Crane v Voorhis, 257 NY 298; Matter of Callaghan v Voorhis, 252 NY 14). As Justice Benjamin observed (p 745): “Under the circumstances of this case, to exclude such candidates from the independent party line is discriminatory and unconstitutional, both as to the candidates and as to the voters allied with the independent movement which wishes to support the candidates only on the independent line *** Since a separate line is reserved on the ballot for those candidates nominated for various offices by this independent movement, it will be unfair to the candidates, their running mates and the signers of the nominating petitions to have a blank space where the names of these nominees would otherwise appear.” Matter of Battista v Power (16 NY2d 198) is distinguishable on its facts. However, in light of the contrary determinations by this court in Matter of Cherry v Hayduk (supra) and Matter of Smith v McNab (supra) we are constrained to agree that the judgment appealed from must be reversed and the application granted only to the extent indicated.