seven, three hundred and seventy-eight and three hundred and eighty of this chapter. The other ballots shall be tied together, labeled, and returned to the ballot box from which they were taken before proceeding to canvass the next kind of ballots to be canvassed. Any inspector who shall refuse to write in ink upon the back of any ballot a memorandum of a ruling or objection to the counting thereof, or shall refuse to place in the package of protested ballots any ballot as to the counting of which any objection has been taken, shall be guilty of a felony. Derivation: Election Law, § 110, pt. of subd. 3, as amended by L. 1898, ch. 335, § 7. Amended by L. 1913, ch. 821, in effect Dec. 17, 1913. See notes to Election Law, §§ 358 and 368. Secrecy is the idea at the foundation of the ballot law, and any construction which would permit the ballots to be counted that would reveal the way the voter using them voted should be avoided as contrary to the true policy and intent of the law. People ex rel. Nichols v. Bd. of Canvassers (1892), 129 N. Y. 401. Ballots incorrectly numbered are "marked ballots" within the statute, and should not be received by the inspectors. But once received and placed in the box, with the stubs containing the numbers torn off, they should be counted. People ex rel. Bradshaw v. Bidelman (1893), 69 Hun, 596, 23 N. Y. Supp. 954. Ballots wrong as to form in that they contain more candidates for a certain ,office than there are persons to be elected to such office shall be regarded and treated as valid, although unofficial ballots. But votes cast by the use of such ballots for more candidates than should be voted for cannot be counted, because they fail to express the elector's choice for the office, and, if there is one ballot cast only containing the proper number of candidates for an office, such ballot shall be counted and the officers thereby voted for declared elected. Montgomery v. O'Dell (1893), 67 Hun, 169, 51 N. Y. St. Rep. 444, 22 N. Y. Supp. 412, aff'd 142 N. Y. 665. Where but one legal vote was cast for a candidate for an office required by law to be filled at that election, such candidate was rightfully declared elected, though not regularly nominated, and his name not printed on the official ballot. Montgomery v. O'Dell (1893), 67 Hun, 169, 51 N. Y. St. Rep. 444, 22 N. Y. Supp. 412, aff'd 142 N. Y. 665. The eligibility of a person voted for cannot be decided by inspectors of elections; their duty is to count the votes cast for any and every person whose name appears upon a ballot printed and indorsed as the law directs. People ex rel. Bradley v. Shaw (1892), 64 Hun, 365, 45 N. Y. St. Rep. 533, 19 N. Y. Supp. 302, aff'd 133 N. Y. 493. Prior to the legislation of 1890, ballots could be counted for candidates for whom they were cast, though they did not in all respects correspond with the direction of the statute, and after deposited in the box could not be rejected in any case by the canvassers if the intent of the voters was sufficiently expressed. People ex rel. Nichols v. Board of Canvassers (1892), 129 N. Y. 401. Power to reject votes. - The power given to canvassers to reject ballots is strongly condemned in People ex rel. Feeney v. Bd. of Canvassers (1897), 23 App. Div. 201, 48 N. Y. Supp. 866, mod'f'g 156 N. Y. 36. Boards of inspectors of election have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to count the ballots actually in the box at the close of the polls. People ex rel. Blodgett v. Board, 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206. Canvassers must reject and treat as void all ballots found in the box prepared for and bearing the designation and number of another and a different polling place or election district than the one where the ballot was cast. People ex rel. Nichols v. Board of Canvassers (1892), 129 N. Y. 395, 408. Ballots misplaced. The election officers may be compelled to place void and protested ballots in separate sealed packages where they have not already done so, provided such ballots can be afterwards identified. Peo. ex rel. Brown v. Freisch (1915), 168 App. Div. 370, 153 N. Y. Supp. 277; modified 215 N. Y. 356. A paper filed by a duly appointed challenger for a political party merely questioning the capacity of certain persons in the military service to vote and not relating to the form or marking of any of their ballots, constitutes a challenge and not a protest, and was properly overruled by the inspectors of election. The ballots of such voters when subsequently counted were not "protested and, therefore, the inspectors cannot be ordered to place such ballots among 66 protested, void and wholly blank ballots." Peo. ex rel. Fiske v. Bantz, No. 2 (1918), 181 App. Div. 712, 168 N. Y. Supp. 968, aff'd 222 N. Y. § 370. Proving the tallies. 1. Proving the tally of ballots other than those for presidential electors. Immediately upon counting the vote for any question, or for any office other than that of presidential elector, the poll clerks shall verify their figures by adding together all the votes tallied therefor, whether for a candidate, or for or against a question, or as void or blank. If, in a case where more than one candidate is to be elected to one office, the number of votes tallied (including void and blank votes) does not exactly equal the number of ballots cast (including void and blank ballots) multiplied by the number of candidates to be elected, or if, in the case of a question submitted or in a case where only one candidate is to be elected to an office, the total number of votes tallied (including void and blank votes) shall not exactly equal the number of ballots cast (including void and blank ballots), an error has been committed and a recanvass must be immediately made, as hereinbefore provided in section three hundred and sixty-eight of this chapter. 2. Proving the tally of ballots for presidential electors. In the case of ballots for presidential electors, the poll clerks shall verify their figures as follows: First, they shall add together the votes counted for electors of each party; Second, they shall add together the votes counted for candidates not on the ballot; Third, they shall add together the void and wholly blank ballots and shall multiply the sum so obtained by the number of electors to be elected; Fourth, they shall add together the votes on the split ballots tallied as blank; Fifth, they shall then add together the four sums so obtained. If the total of these four sums shall not exactly equal the number of ballots cast (including void and blank ballots) multiplied by the number of electors to be elected, an error has been com mitted, and a recanvass must be immediately made as herein before provided in section three hundred and sixty-eight of this chapter. Derivation: Election Law, § 110, pt. of subd. 3, as amended by L. 1898, ch. 335, § 7. Amended by L. 1913, ch. 821, in effect Dec. 17, 1913. 1 Care in following statutory provisions.—Where a ballot is not void but is to be dealt with as objected to because marked for identification, great care should be observed to follow every provision of the statute designed to identify or preserve the ballot for future legal proceedings. People ex rel. White v. Board of Aldermen of Buffalo, (1898) 157 N. Y. 431, mod'f'g 31 App. Div. 438, 52 N. Y. Supp. 643. A canvassing board No power to reject ballots marked for identification. has no power to reject ballots which are marked for identification, and a mandamus will not lie to require them to do so. In re Kline, (1896) 17 Misc. 672, 40 N. Y. Supp. 600; People ex rel. McLaughlin v. Ammenwerth, (1910) 197 N. Y. 340, aff'g 135 App. Div. 893, 120 N. Y. Supp. 295. Inspectors have no right to reject a ballot because it bears marks which they think were placed upon it by the voters for the purpose of identifying it, but they must count such ballots and indorse them "protested as marked for identification." Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205. Where inspectors, pursuant to a writ of mandamus, have corrected their return by counting ballots protested as marked for identification, a subsequent writ does not lie to compel the board of county canvassers to direct the election inspectors to again change the return so that the figures conform to the tally sheet of the votes in that district. Such relief would in effect reverse the prior order. People ex rel. McLaughlin v. Ammenwerth, (1910) 197 N. Y. 340, aff❜g 135 App. Div. 893, 120 N. Y. Supp. 295. A single inspector cannot indorse upon a ballot an objection raised subsequently to the canvass that it was marked for identification. People ex rel. Bush v. Board, (1893) 66 Hun, 265, 21 N. Y. Supp. 279. Inspectors are liable in damages for refusing to perform any of the acts required by the statute in relation to ballots objected to as marked for identification. People ex rel. Hasbrouck v. Supervisors, (1892) 135 N. Y. 522. When the objection to ballots as marked for identification is not raised during the canvass, a mandamus will not lie to compel the inspectors to reconvene and recount the ballots. The remedy left open is by quo warranto, or by the determination of the board to which an officer is declared elected by the canvass objected to. People ex rel. Clark v. Earley, (1896) 16 Misc. 603, 40 N. Y. Supp. 587. § 371. General provisions as to canvass. The ballots shall at all times be kept on top of the table and in plain view of all parties entitled to examine them, until they have been tied into bundles as elsewhere provided. If requested by any person entitled to be present the inspector shall, during the canvass of any ballot, exhibit to him the ballot then being canvassed, fully opened and in such a condition that he may fully and carefully read and examine it, but no inspector shall allow any ballot to be taken from his hand or to be removed from any pile by any person but the chairman. Any person other than a constituted election officer who shall handle any ballot voted or unvoted or the stub thereof shall be guilty of a misdemeanor. Any person who shall mark, tear or deface any ballot of another with the intent of defeating or altering a vote or ballot, shall be guilty of a felony, and shall be punished upon conviction thereof by imprisonment in a state prison for a period of not less than five nor more than ten years. Derivation: Election Law, § 110, pt. of subd. 3, as amended by L. 1898, ch. 335, § 7. Amended by L. 1913, ch. 821; L. 1917, ch. 703, in effect June 1, 1917. §372. Statement of canvass to be delivered to police. In all cities and villages of five thousand inhabitants or more the chairman of the board of inspectors shall, forthwith upon the completion of the count of votes and the announcement thereof, deliver to the police officer on duty at such place of canvass a statement subscribed by the board of inspectors, stating the number of votes received by each candidate for office and the number of votes cast for and against all questions, propositions or constitutional amendments submitted. Such statement shall forthwith be conveved by the said officer to the station-house of the police precinct in which such place of canvass is located, and he shall deliver the same inviolate to the officer in command thereof, who shall immediately transmit by telegraph, telephone or messenger, the contents of such statement to the officer commanding the police department of such city or village. In a city of over one million inhabitants, such commanding officer shall cause all such returns to be immediately tabulated so that the final results may be known as early as possible, and within twentyfour hours of its receipt at the station-house such statement itself shall be filed with such commanding officer. Such statement shall be preserved for six months by the police, and shall be presumptive evidence of the result of such canvass for each such office. Derivation: Election Law, § 110, pt. of subd. 3, as amended by L. 1898, ch. 335, § 7. Amended by L. 1911, ch. 649; L. 1915, ch. 678; L. 1918, ch. 323, in effect Apr. 24, 1918. § 373 Returns of canvass. Upon completing the canvass, the inspectors and poll clerks shall make and sign in ink their several returns in triplicate, and shall verify them before the respective officers authorized for that purpose, and shall sign and certify in ink each tally sheet to be certified by them. In making their returns as aforesaid, the inspectors and poll clerks shall use the printed forms supplied to them with the ballots, and they shall carefully insert in all the blank spaces thereon the appropriate names, words and figures according to the directions contained in article nine of this chapter and printed on the forms. In the absence of an officer authorized to take acknowledgments and proof of deeds, and for the purposes of this chapter, any election officer shall be authorized to administer the oath to any other election officer. Each of the two tally sheets shall be securely attached by the chairman to one of the returns relating to the same office or question and shall be treated as a part thereof. Any election officer who shall sign any statement of the canvass at any place other than the polling place, or at any time other than immediately after the canvass is completed, except under direction of a court, and any election officer or person who shall take from the polling place any such statement before it shall have been signed as herein provided, is guilty of a felony, and shall be punished, upon conviction thereof, by imprisonment in a state prison for not less than two nor more than five years. If changes be necessary in any of the forms for tallies and returns, as prescribed in this article, the secretary of state shall prescribe the same. Derivation: Election Law, pt. of § 111. Amended by L. 1913, ch. 821, in effect Dec. 17, 1913. Consolidators' note. The direction to indorse ballots which have been protested as marked for identification is omitted, this direction having been already given fully in section 370. The expression here omitted, “protested as," is better than the expression used in section 370, “objected to as," and is accordingly transplanted to that section. Cross-References. For form of election returns, see Election Law, § 338. Making false return. Penal Law, § 766 (part 5, post). Correction of errors in statement. Election Law, § 432. Canvass of vote and proclamation of result where voting machine used. Election Law, § 413. Void ballots. The decision as to the validity of such a ballot must be made by the inspectors while making the canvass and calls for a summary determination upon a mere inspection of the ballot itself. If its markings do not substantially comply with the rules and requirements of the Election Law, it must be adjudged void and returned endorsed by the inspectors as void. Matter of Houligan, (1907) 55 Misc. 8, 106 N. Y. Supp. 205. An erasure or alteration visible upon the face of a statement of canvass will not create the presumption of fraud. Election returns are documents of a public nature, and in the absence of proof that they have been fraudulently tampered with will be received as evidence in courts of justice. People ex rel. Stone v. Minck, (1860) 21 N. Y. 539. A new statement of canvass cannot be made by the inspectors after the completion and filing of the original statement. Boards of inspectors cannot thus review their own acts. People ex rel. Russell v. Board, (1887) 46 Hun 390, 20 Abb. N. C. 19. Inspectors having made a canvass cannot be compelled or permitted |