In re O'Brien

180 A.D. 853, 168 N.Y.S. 71, 1917 N.Y. App. Div. LEXIS 9051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1917
• Status: Published

Opinion

Per Curiam:

On examination of the ballots in dispute, we reach these conclusions: We think ballot No. 5, “ O’Brien the Taxi

man,” was void for its distinguishing mark. Ballots 6, 7 and 8 should be counted, even if the written name was below the fine horizontal fine, as the name was “ under the title of the proper office or party position.” (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 82, added by Laws of 1911, chap. 891, as amd. by Laws of 1916, chap. 537.) Ballot 10, however, is invalid, for the words written, “ for county committee.” The inspectors properly rejected ballots 11, 12 and 13, as not bearing the relator’s name. Ballots 9 and 14-38, inclusive, have a superfluous cross before relator’s name written in. This is illegal. (People ex rel. Brown v. Board of Supervisors, Suffolk County, 170 App. Div. 364, 371; revd. on this point, 216 N. Y. 732, 734.)

The vote for relator, as corrected, is thus computed:

O’Brien’s total vote, by order of Special Term.......... 50

Invalid ballots 5, 10, 11, 12 and 13................ 5

Invalid ballots 9 and 14-38, inclusive.............. 26

- 31

Leaving as relator’s corrected vote................. 19

Accordingly, Frank E. Clarke, having forty-six votes out of the sixty-five valid votes cast, received a majority vote for member of the Republican county committee of Westchester county. The custodians of primary records of Westchester county, being the commissioners of election in said county, should so certify.

The order of the Special Term should be modified, without costs, so as to declare that appellant Clarke received a majority vote, being forty-six votes out of sixty-five valid votes cast, and that his election should be so certified.

Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred.

Order of the Special Term modified, without costs, so as to declare that appellant Clarke received a majority vote, being forty-six votes out of sixty-five valid votes cast, and that his election should be so certified.