In re Whitman

185 A.D. 571, 172 N.Y.S. 748, 1918 N.Y. App. Div. LEXIS 6695

Opinion

Per Curiam:

We are of opinion that the court was not authorized to order a mandamus for a recanvass. But upon the application in question the court was confined to a determination whether the application justified an order That the void, wholly blank and protested ballots be brought into court that the court could thereupon -determine whether any of such ballots were canvassed improperly with respect to the applicant, to the end that a mandamus with specific instructions for the recanvass should issue. We are of opinion that the allegation of the moving affidavit was sufficient to justify an order that such ballots be brought into court, but that the order should have ended there. Therefore, the order should be amended accordingly and should be further amended by vacation of the stay in accord with the consent in open court, without prejudice, however, to a future application therefor.

As thus modified, the order is affirmed, without costs.

Jenks, P. J., Thomas, Putnam, Blackmar and Jaycox, JJ., concurred.

Order modified, and as modified affirmed, without costs.