People ex rel. Putzel v. Simonson

16 N.Y.S. 118, 68 N.Y. Sup. Ct. 338, 27 Abb. N. Cas. 422, 40 N.Y. St. Rep. 682, 61 Hun 338, 1891 N.Y. Misc. LEXIS 348

• Court: New York Supreme Court
• Decided: October 16, 1891
• Status: Published

Opinion

Per Curiam.

We do not think that section 15 of chapter 563 of the Laws of 1890 ¹ justified the granting of a mandamus. The section in question is simply a re-enactment of the provisions of the Revised Statutes, and the relief intended by the section was to establish an election already had, or to set aside that election and order a new one; and the proceeding authorized is summary, and not by mandamus. There is nothing in that section which authorizes the court to compel the inspectors of election to count votes which they have heretofore refused to count, although they may have acted erroneously. The only relief which could be afforded where the inspectors had acted improperly would be to order a new election in case justice requires such action. The proceeding for that purpose is prescribed by statute. The order appealed from should be reversed, with costs of appeal, and the proceedings dismissed, with $20 costs. All concur.

1 Section 15 of chapter 563 of the Laws of 1890 provides as follows: “The supreme court shall, upon the application of any person or corporation aggrieved by or complaining of any election of any corporation, or any proceeding, act, or matter touching the same, upon notice thereof to the adverse party, or to those to be affected thereby, forthwith and in a summary way hear the affidavits, proofs, and allegations of the parties, or otherwise inquire into the matter or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require, and may in its discretion order issues to be made up in such manner and form as it may direct, to try the rights of the respective parties touching the matters complained of ”