People ex rel. Blackhurst v. Weeks

11 N.Y.S. 671, 1890 N.Y. Misc. LEXIS 2292

Opinion

Daly, J.

Under the decision in People v. Nolan, 65 How. Pr. 468, it is doubtful whether, in an ordinary case of contested election, when the incumbents who are ousted hold office by virtue of a regularly issued certificate of election, and the contest is with regard to the rejection of proper votes or the reception of improper votes, the court should impose a fine under section 1956 of the Code. There are eases of intrusion into and unlawful usurpation of office without any color of right or authority in which the imposition of a fine would be eminently proper. A distinction should be made between such cases and the one above referred to. I also deem it proper to leave the question of a new election to the court upon the application for a mandamus. The time for holding it can be decided at a later date. Application denied.