People ex rel. Simons v. Knickerbocker

225 A.D. 212, 232 N.Y.S. 399, 1929 N.Y. App. Div. LEXIS 11601

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1929
• Status: Published

Opinions

Scudder, J.

It appears that at the general election held November 8, 1927, in and for the township of Ancram, Columbia county, vacancies were to be filled in town offices, including the office of supervisor. No party nominations .were made for town .officers. The electors were furnished by the election authorities with ballots for voting. These ballots contained the names of candidates for offices other than for town offices. They also contained party emblems and voting spaces for the cross alongside the emblems, and to the right of these voting spaces blank lines for the writing in of the names of the candidates of the electors’ choice. Earl Knickerbocker, the defendant, respondent, was declared elected supervisor by a majority of two votes over the relator, appellant, John Simons. There are three ballots, the validity of which is in dispute; all three were counted for the respondent, who presently is in office as supervisor, from which office this proceeding seeks to remove him.

The name of Earl Knickerbocker, the respondent, was written in by the voter of each of the three disputed ballots, and in addition, in the open square provided for the cross mark between the party emblem and the blank line for writing in the candidate’s name, the voter made a cross mark.

It is here contended that because the voter placed this cross mark in the blank voting square provided on the ballot by the election officials in front of the written-in name, the disputed ballots are void, citing People ex rel. Brown v. Board of Supervisors (216 N. Y. 732, revg. 170 App. Div. 364). It seems to me that case is distinguishable. There, a cross mark made on a “ blacked out ” space was held to void the ballot. The “ blacking out ” of the space surely was not an invitation to the voter to use it for his cross mark. How different the case at bar. Here, the election officials provided the ballots with the usual voting space in front of the blank line for the writing in of names, just as they provided for such a voting space where candidates’ names were printed upon the ballot.

Appellant also cites Matter of O’Brien (180 App. Div. 853, 854). In that case no blank voting space had been provided on the ballot, but the voter made a cross mark ahead of the name he had written in. It was held that this cross mark was superfluous. Here also there was no invitation to the voter on the part of the election officials to make the superfluous cross mark; the fault lay with the voter alone. I note that People ex rel. Brown v. Board of Supervisors (supra) expressly does not overrule Matter of Garvin (168 App. Div. 218), where the court said (at p. 222): “ Finally there is a ballot for Garvin upon which under the title of Governor is written ( Sulzer ’ with a cross mark in the voting space. This was declared void and improperly so. The voter had the right to write in the name of a candidate not printed on the ballot and to vote for him by making a cross in the voting space.” In the case at bar the first fault was with the election officials. By the form of ballot provided by them they misled the voter and invited him to make the cross complained of. The intent of the voter is clear. His honest effort to perform a high duty should not be defeated by a misleading mistake of officials upon whose guidance he had a right to depend.

The judgment appealed from should be affirmed, with costs.

Hagarty and Seeger, JJ., concur; Kapper, J., dissents and reads for reversal, with whom Lazansky, P. J., concurs.