People ex rel. Fiske v. Bantz

181 A.D. 702, 168 N.Y.S. 965, 1918 N.Y. App. Div. LEXIS 4031

Opinion

Pee Cubiam:

We agree with the learned justice at Special Term that this relator could not have mandamus in this proceeding. Clerical errors on the return, or made apparent by not agreeing with the tally sheet, may be thus corrected. (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 432, as amd. by Laws of 1913, chap. 821; Matter of Stewart, 155 N. Y. 545.)

But in the present proceeding the courts have not power to open the ballot box and direct a recanvass of the votes so cast. (People ex rel. Brink v. Way, 179 N. Y. 174; People ex rel. March v. Beam, 188 id. 266; Matter of Hearst v. Woelper, 163 id. 274; Matter of Tompkins, 23 App. Div. 224; Matter of Election of Member of Assembly, 18 Misc. Rep. 391.)

Section 520 of the Election Law does not take away these safeguards, but merely declares that soldiers’ and sailors’ elections may be contested like other elections by citizen voters.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concurred.

Order of December 26, 1917, affirmed, with ten dollars costs and disbursements.