the voting mark. People ex rel. Obert v. Bourke (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

A ballot is not invalidated by the fact that it has, in the party circle, several marks which cross each other at various angles. People ex rel. Obert v. Bourke (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

A ballot should be counted where the cross mark placed in the circle at the head of a party ticket is not perfect and is something more than a cross mark. People ex rel. Bantell v. Morgan (1897), 20 App. Div. 48, 46 N. Y. Supp. 898.

A ballot cannot be counted where the elector has not placed a cross mark in the voting space at the left of the name of a candidate, but has placed, in the column which is provided for the use of electors who wish to vote for persons not formally nominated, a cross mark in the voting space at the left of the blank headed "For Trustee," no name being written under the latter words. People ex rel. Bantell v. Morgan (1897), 20 App. Div. 48, 46 N. Y. Supp. 898.

A ballot is not necessarily invalid because the marks constituting the cross are not exactly straight, even or regular, unless there is a manifest intention to evade or violate the law. It is only where an attempt to make a distinguishing mark can be inferred that the ballot should be rejected. A ballot is not necessarily invalid because an elector in making a mark retraced the stroke of his pencil, thereby making an uneven or double line. Matter of Hearst (1905), 48 Misc. 453, 96 N. Y. Supp. 119, modf'd 110 App. Div. 346, 96 N. Y. Supp. 341, rev'd 183 N. Y. 247.

Ballots having, in addition to the cross mark, marks in the voting space, apparently made for identification; those having erasures, in whole or in part, made by rubber or pencil, and a ballot having an inner circle within the voting circle and containing a cross mark partially erased, are void. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

Trifling marks upon a ballot made by a voter by accident do not vitiate it. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598. If lines cross each other in the slightest degree, they constitute the statutory cross mark. A cross mark with a third mark crossing it is a sufficient mark. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598. A straight Republican ballot, having a proper cross mark in the party circle, is not invalidated by a diagonal straight line in the voting space opposite the name of a Democratic candidate. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A ballot having a cross mark in both voting spaces opposite the names of rival candidates for the same office, but one not in question, is not wholly invalid, but it cannot be counted for that office. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A ballot having two cross marks in the voting space opposite the name of one candidate is valid. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A balolt having its cross marks partly within and partly without the voting space and so made that the lines, if continued, would cross each other but for the fact that one of them loses its identity by running into the broad

outside ink border of the ballot, is valid. (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

People ex rel. Plerce v. Parkhurst

A mark made on the lines of an A, crossed by a line nearly horizontal, and situate, partly at least, within the voting space, is a sufficient cross mark. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 59 N. Y. Supp. 598.

A ballot having a cross mark wholly within the voting space and wholly within the space occupied by the name of a Democratic candidate cannot be counted for a Republican candidate. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 59 N. Y. Supp. 598.

In writing a name in the blank column on a ballot a cross mark should not be used before that name. Rept. of Atty.-Gen. (1907), 555.

As to marking of ballots by voters, see also, cases cited in note to Election Law, section 368.

Ballots marked in more than one voting space before the name of a candidate for a given office who has been nominated by more than one party, are not void. Rept. of Atty. -Gen. (1914), vol. 2, p. 370.

Ballots are void where erasures appear upon the face thereof. Where a voter places the figure 2 in the voting square before the name of a candidate numbered 20, and then superimposes a cross mark upon it, the ballot is void. A ballot which contains an extra cross mark outside of the voting square and not in front of the name of any candidate is void. A ballot containing the figure 4 in the voting space so numbered, and a cross mark superimposed thereon, and also containing a hair line or involuntary mark in another voting space, is void. A ballot containing an ink mark on the border thereof which might have been placed there in the process of counting and canvassing should not be declared void where it does not appear that the voter himself placed said mark upon the ballot. A ballot containing a solid black diamond mark in the voting square is void. A ballot having a curved horizontal mark in the voting square in front of the name of the candidate is void. A half cross in a voting square invalidates a ballot. A short line in one voting space, probably the commencement of a cross mark, invalidates the ballot, although the voter made a proper mark in another space. A ballot having a smudge opposite a voting space, which may be interpreted to be a thumb mark, the cross mark in front of the candidate's name being left firm and clear, and the smudge being to the left of said mark and not interfering with it, is not void. Matter of Slevin (1917), 179 App. Div. 618, 167 N. Y. Supp. 72. Erasures, pencil marks other than proper cross marks, incomplete cross marks and unauthorized pencil markings, tears and holes evidently made by voters. writing the word Republican' on the ballot, voting for candidates of another county, writing in name of candidate with ink instead of pencil with black lead, making cross mark with ink, were held to render the ballots void. People ex rel. Colne v. Smith (1919), 188 App. Div. 834, 176 N. Y. Supp. 608.

Voting more than once for the same candidate by making a cross mark in the voting space opposite his name in different columns, or making a heavy cross consisting of more than one line crossing another and with flourishes or separated at the end, evidently made by the voter in running the pencil back and forth, or making an X in the marked out space not requiring an X where the name of the candidate is written in, or a cross of double lines or evidently accidental dots or pencil lines, writing part of a name of a candidate whose name is not printed in the space for writing in a name, or a smudge or ink mark on the border which might have been made by the inspectors, does not invalidate the ballot. People ex rel. Colne v. Smith (1919), 188 App. Div. 834, 176 N. Y. Supp. 608. There is no presumption that a ballot was torn by a voter. People ex rel. Colne v. Smith (1919), 188 App. Div. 834, 176 N. Y. Supp. 608.

In determining whether a cross mark complies with the law and whether slight lines or dots were accidentally made, allowance must be made for infirmity of the voter as to eye-sight or physically. People ex rel. Colne v. Smith (1919), 188 App. Div. 834, 176 N. Y. Supp. 608.

Any erasure on a ballot manifestly made by a voter, or failure to cross the line of the cross mark within the voting space, or making a cross mark on the ballot other than in the voting space, or using any instrument other than a pencil with black lead in marking the ballot, or making a semi-circular mark over and detached from the cross mark or making one-half of a cross mark, or making a number in the voting space or an incomplete cross mark, or a single line in the voting space instead of a cross mark, or any mark other than a cross mark in the voting space, or a figure consisting of many lines but not constituting a cross mark, renders the entire ballot void. People ex rel. Colne v. Smith (1919), 188 App. Div. 845, 176 N. Y. Supp. 608.

Where a soldier ballot marked "Dr. Brush" had not been protested, and the inspectors of election had credited the vote to Edward F. Brush because such intention of the voter was clearly apparent, a writ of mandamus will not lie to compel the inspectors of election to correct their return. Peo. ex rel. Fiske v. Anderson (1918), 181 App. Div. 705, 168 N. Y. Supp. 839, aff'd 222 N. Y. 678.

Under 514 the inspectors' finding that soldiers intended to vote for Edward F. Brush should be controlling although the ballots were marked "Dr. Brush," "Brush" and "Mr. Brush." People ex rel. Fiske v. Anderson (1918), 181 App. Div. 716. 168 N. Y. Supp. 840, aff'd 222 N. Y. 678, 685, 686.

Where a ballot was marked with the word "Fiske" and the inspectors

failed to find the voter's intent to be for the relator Edwin W. Fiske and there was no protest in regard to said ballot, the court, on application for a writ of mandamus to correct the return, has no authority to count said vote for the relator. Peo. ex rel. Schum (1918), 181 App. Div. 717, 168 N. Y. Supp. 967, aff'd 222 N. Y.

Soldiers' votes, application to.- People ex rel. Fiske (1917), 102 Misc. 136, 168 N. Y. Supp. 398; People ex rel. Brush v. Schum (1917), 102 Misc. 143, 168 N. Y. Supp. 391..

Where the proper cross mark has not been placed before the name of the candidate the ballot is void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A ballot containing a second cross near the name of a candidate which was not made by the voter, but caused by the heavy ink and incidental to the folding of the ballot, is not invalid. People ex rel. Brown v. Bd. of Suprs. Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A cross in the space before the name of a candidate written in, which space had been "blacked out" because not required by statute, does not invalidate the ballot; it is simply an attempt on the part of the voter to indicate his choice. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

Where the voting cross is placed in the space occupied by the emblem, the ballot is void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

Ballots not containing cross marks, but defective and incomplete marks that may serve for identification, are void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A ballot having a semi-circular mark over the cross, but not a part thereof, is void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

A ballot having two crosses in the same voting space, or one cross with an attempted erasure of the other, is void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732. Flourishes at the upper end of both lines of the cross not constituting distinct lines, but made with the same impression of the pencil, constitute an irregular cross, and do not render the ballot void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

Erasures may render a ballot void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732..

Writing the name of a candidate in the space underneath the printed name of a candidate for the office, instead of in the blank space provided for such purpose, renders the ballot void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732; Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 A. Y. Supp. 979; modified 216 N. Y. 732.

Invalid vote for one officer not invalidating entire ballot.-An entire ballot is not invalidated by the fact that the elector placed a cross in front of the name of a candidate for town clerk and then wrote in the name of another for the same office, but is invalid only as to the vote for town clerk. Matter of Rowe (1920), 192 App. Div. 4, 182 N. Y. Supp. 216.

The putting of the ballot in the sealed envelope for the enrollment blank, is an act extrinsic to the ballot which will have the effect to identify it. Peo. ex rel. Brown v. Keller (1915), 170 App. Div. 324, 155 N. Y. Supp. 976; aff'd 216 N. Y. 741.

Marking ballots for constitutional delegates.-Subd. 3 of this section controls in respect to the manner of marking the ballot for delegates to the constitutional convention, and if the ballot contains a cross-mark in the circle above a party column and also a cross-mark in one or more voting squares at the left of the names of one or more delegates, or the voter writes in a name or names, the ballot should be counted for all the electors in the party group except those whose names are opposite to the names so specially indicated. Rept. of Atty.-Gen. (1914), Vol. 2, p. 371.

359. Manner of voting.

When the ballot or ballots which a voter has received shall be prepared as provided in the preceding section, he shall leave the voting booth with his ballot folded so as to conceal the fact of the ballot, but show the indorsement and facsimile of the signature of the official on the back thereof, and, keeping the same so folded, shall proceed at once to the inspector in charge of the ballot box, and shall offer the same to such inspector. Such inspector shall announce the name of the voter and the printed number on the stub of the official ballot so delivered to him in a loud and distinct tone of voice. If such voter be entitled then and there to vote, and be not challenged, or if challenged and the challenge be decided in his favor and if his ballot or ballots are properly folded, and have no mark or tear visible on the outside thereof, except the printed number on the stub and the printed indorsement on the back, and if such printed number is the same as that entered on the poll-books as the number on the stub or stubs of the official ballot or set of ballots last delivered to him by the ballot clerks, such inspector shall receive such ballot or ballots, and after removing the stub or stubs therefrom in plain view of the voter, and without removing any other part of the ballot, or in any way exposing any part of the face thereof below the stub, shall deposit each ballot in the proper ballot box for the reception of voted ballots, and the stubs in the box for detached ballot stubs. voting, the voter shall forthwith pass outside the guard-rail unless he be one of the persons authorized to remain within the guard-rail for other purposes than voting.

'Upon

No ballot without the official indorsement shall be allowed to be deposited in the ballot box except as provided by sections three

hundred and forty-five and three hundred and sixty of this chapter, and none but ballots provided in accordance with the provisions of this chapter shall be counted. No official ballot folded shall be unfolded outside the voting booth. No person to whom any official ballot shall be delivered shall leave the space within the guard-rail until after he shall have delivered back all such ballots received by him either to the inspectors or to the ballot clerks, and a violation of this provision is a misdemeanor.

When a person shall have received an official ballot from the ballot clerks or inspectors, as hereinbefore provided, he shall be deemed to have commenced the act of voting, and if, after receiving such official ballot, he shall leave the space inclosed by the guardrail before the deposit of his ballot in the ballot box, as hereinbefore provided, he shall not be entitled to pass again within the guard-rail for the purpose of voting, or to receive any further ballots.

Derivation: Election Law, § 106.

Cross-references.- Showing ballot so as to reveal its contents. Penal Law, § 764 (part 5, post). Person other than inspector receiving ballot. Penal Law, § 764 (part 5, post). Failure to return unvoted ballots. Penal Law, § 764 (part 5, post). Illegal voting generally. Penal Law, §§ 764, 765 (part 5, post). An elector must vote all the ballots that he wishes and is able to vote at one time. He cannot present himself more than once at the polls for the purpose of voting, and when he is reached in his turn he must once and for all exercise his right of suffrage at that election. Simpson v. Brown, (1888) 18 N. Y. St. Rep. 781, 2 N. Y. Supp. 571.

What ballots counted. The requirement that "none but ballots provided in accordance with the provisions of the Election Law shall be counted" is to prevent the use of any other than official ballots, except only in the cases provided for in sections 89 and 107 (now §§ 345 and 360), and not to condemn as invalid official ballots which have been furnished to the electors by public officers charged with that duty for some oversight or error on their part. People ex rel. Williams v. Board of Canvassers, (1905) 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.

Ballots placed within the envelope for the enrollment blank, the envelope being sealed, are void upon the ground that they were never voted. Peo. ex rel. Brown v. Keller (1915), 170 App. Div. 324, 155 N. Y. Supp. 976, aff'd 216 N. Y. 741.

Unofficial ballots at village election.- The inspectors of an election at a village election cannot issue a poll or count unofficial ballots. If they do so mandamus will issue to compel them to reconvene, return the unofficial ballots, correct the statement of the results of the canvass and make a proper certifi cate of the result. People ex rel. March v. Beam, (1907) 117 App. Div. 374, 103 N. Y. Supp. 818, mod'f'd 188 N. Y. 266.