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office under a bona fide claim and an election that is not merely colorable. If the claimant contends that he had a majority of legal votes he must procure a quo warranto to oust the actual occupant before he can obtain a mandamus to force his own admission. People ex rel. Gaige v. Reardon (1888), 49 Hun, 425, 3 N. Y. Supp. 560.

Quo warranto to oust public officer. - Particulars required of plaintiff, in such action, as to districts in which votes were illegally cast. See People v. McClellan (1908), 124 App. Div. 215, 108 N. Y. Supp. 765, rev'd 191 N. Y. 341. A statement of canvass or certificate of election is only prima facie evidence of the title of the persons therein declared elected to the offices mentioned in the statement or certificate. Where a proceeding by quo warranto or in the nature of quo warranto is instituted to try the right to the offices directly, it is competent to go behind the certificate or statement, which would otherwise be conclusive, to ascertain the real facts of the case. People v. Van Slyck (1825), 4 Cow. 297; People v. Ferguson (1827), 8 Cow. 102; People v. Vail (1838), 20 Wend. 12; People v. Seaman (1848), 5 Den. 409. The remedy for frauds and mistakes other than clerical is by proper proceedings in court or before the board or body, to membership in which the person aggrieved is a candidate, where that board or body has the power conferred upon it to determine the qualifications and election of its own members. Mandamus is not such a proper proceeding in court. People ex rel. Blodgett v. Board, 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206. Mandamus to compel recount and recanvass. The Election Law does not impose the duty, nor does it confer authority, upon election officers to reconvene on a day subsequent to the completion of a canvass made by them, and recount the ballots cast at the election, and the courts have no power, express or implied, to compel such recount by mandamus. Matter of Hearst v. Woelper (1905), 183 N. Y. 274, rev'g 110 App. Div. 346, 96 N. Y. Supp. 341. which mod'f'd 48 Misc. 453, 96 N. Y. Supp. 119; People ex rel. Brink v. Way (1904), 179 N. Y. 174, rev'g 92 App. Div. 82, 86 N. Y. Supp. 892; People ex rel. Cantor v. Forman (1915), 170 App. Div. 894, 154 N. Y. Supp. 689.

Where inspectors of election at a town meeting have failed to perform their statutory duty to count and canvass the ballots, and the town clerk has not entered the result upon his minutes, the inspectors and clerk will be required by mandamus to convene and discharge their statutory duties. People ex rel. Sturtevant v. Armstrong (1906), 116 App. Div. 103, 101 N. Y. Supp. 712.

In determining the ballots which shall be counted or rejected, inspectors of election act judicially and cannot be required by a common-law mandamus to decide in a particular manner. People ex rel. Haverly v. Hanes (1904), 44 Misc. 475, 90 N. Y. Supp. 61.

Where it appears that the board of canvassers omitted to indorse their reasons upon the back of ballots rejected as void, and omitted to place these ballots in a sealed package and file the same with the original statement of the canvassers, and that they improperly replaced these void ballots with the others in the ballot box, any person aggrieved or interested would be entitled to a writ of mandamus, without seeking authority therefor in the Election Law, compelling the board of canvassers to convene and do what they omitted to do. People ex rel. Maxim v. Ward (1901), 62 App. Div. 531, 71 N. Y. Supp. 76.

Inspectors may be compelled by mandamus to make further return of the

results of an election, where it appears that the return made contains clerical errors and that the canvass of the votes cast was in some respects conducted in violation of the Election Law. People ex rel. Ranton v. Syracuse (1895), 88 Hun, 203, 34 N. Y. Supp. 661.

In a petition for mandamus under this section to obtain a recount of ballots which were counted although marked for identification and other ballots which were rejected as void, the petitioner must state the particular election districts in which the facts stated appeared upon the certified return. Matter of Ordway (1907), 118 App. Div. 386, 103 N. Y. Supp. 360.

In the absence of an express statutory provision, a private citizen and voter has no right, after a correct canvass of the votes cast at an election has been made, to compel a recanvass upon the sole ground that the canvass already made was not made by the officers authorized by law to make it. Matter of Scofield v. Board of Aldermen (1905), 102 App. Div. 358, 92 N. Y. Supp. 672. The Supreme Court has no authority under this section or under its general power, authority and jurisdiction to determine the validity of ballots contained in the boxes deposited with the city clerk, where there has been a clerical error in the returns by the election inspectors, nor to order a recount of such ballots. People ex rel. White v. Supervisors of Albany County (1908), 192 N. Y. 539, aff'g 125 App. Div. 914, 109 N. Y. Supp. 1142.

Mandamus is not proper remedy to test title to a public office of which there is a defacto incumbent. People ex rel. Veberforden v. Bauer (1910), 137 App. Div. 67, 122 N. Y. Supp. 60.

Judicial review of ballots cast.- No provision of this section empowers the appellate division to institute or order, as a proceeding, a judicial review of the ballots cast, or to order the special term to enter upon and conduct such a review or, in the first instance, to order the special term to inspect or investigate the ballots or to order the custodian of the ballots to produce them before the special term, nor can the provisions of § 374 be made the basis of such an order where the proceeding was expressly and concededly commenced, and from the beginning has been opposed, under § 381. Matter of Whitman (1918), 225 N. Y. 1.

Special acts providing for a judicial recount and recanvass of the votes cast for the office of mayor at the election of November 7, 1905, in cities of the first class, were passed by the Legislature in 1907. See chs. 538 and 558, L. 1907.

A county court has no power to order a recount of ballots, nor power to appoint a referee to supervise the recount and to decide as to the validity of ballots. Matter of Tompkins (1897), 23 App. Div. 224, 48 N. Y. Supp. 737.

Where the returns do not agree with the tally sheet the courts can require by mandamus that the inspectors be summoned before the board of county canvassers and be compelled to amend their returns by inserting in them the results as shown by the tally sheets. Matter of Stewart (1897), 24 App. Div. 201, 48 N. Y. Supp. 957, aff'd 155 N. Y. 545.

In an aldermanic election in New York city where the ballot clerk's returns agreed with the statements of canvass prepared by the boards of inspectors except in a single district, in which it was conceded an error was made by the inspectors in transcribing the result of the count, which mistake the respondent consented to have corrected, an application to open the ballot boxes was denied. Matter of Slattery (1906), 50 Misc. 212, 100 N. Y. Supp. 419.

The intent of the voter will be effectuated as far as possible by the court's ruling as to the counting or discarding of votes. People ex rel. Nichols v. Board of Canvassers (1892), 129 N. Y. 401.

Mandamus to investigate void and protested ballots.-The power of the court in a proceeding to investigate void and protested ballots is not limited to determine whether the ballots in question are valid or void, but it may go further and determine for what particular candidates they should be counted. In re "Jerome Ballots" (1905), 48 Misc. 441, 96 N. Y. Supp. 122.

If void ballots have been treated by the inspectors as ballots marked for

the purpose of identification and counted, the court has jurisdiction to pass upon them as void ballots and to direct the inspectors to make the statement on the result of the election on that basis. 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.

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Where ballots, found in sealed packages of ballots objected to because marked for identification, are returned by the election inspectors as objected to for that reason, but are marked by them as counted, objected to as void," the court has jurisdiction to consider their validity in general. People ex rel. Obert v. Bourke (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

Under this section a writ of mandamus may be issued to determine whether any ballot and the votes thereon, which has been rejected by the inspectors as void, shall be counted. Matter of Larken (1900), 46 App. Div. 366, 61 N. Y. Supp. 597 (1899), rev'd on another ground 163 N. Y. 201.

Mandamus to compel the counting of votes protested as marked for identification. Inspectors of election who have failed to count ballots protested as marked for identification will be compelled by mandamus to reconvene and correct their return and will be deemed to continue in office for that purpose. People ex rel. McLaughlin v. Ammenwerth (1910), 197 N. Y. 340, aff'g 135 App. Div. 893, 120 N. Y. Supp. 295.

Where such inspectors, pursuant to a writ of mandamus, had 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.

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An election will not be nullified in toto by the casting and counting of marked ballots. Such ballots will be thrown out as void, but will not operate to render void the ballots that were regular and in accordance with the provisions of the statute. People ex rel. Bradshaw v. Bidelman (1893), 69 Hun, 596, 23 N. Y. Supp. 954.

Unless objection is made during the canvass to a ballot as marked for identification the inspectors are not required to so indorse it nor return it with the statement of canvass. A peremptory writ of mandamus will not issue compelling the board to so indorse the ballot upon an objection made subsequent to the canvass, but an alternative writ will issue in order that the fact of the validity of the ballot may be tried. People ex rel. Bush v. Board (1892), 66 Hun, 265, 21 N. Y. Supp. 279.

Mandamus will not be granted to compel a board of canvassers to reconvene and recount the ballots cast at an election and allow certain ballots rejected by them, where it appears that such ballots were not objected to or marked by the inspectors as marked for identification, or attached to the statement of canvass. People ex rel. Clark v. Earley (1896), 16 Mise. 603, 40 N. Y. Supp. 587.

That an objection to a ballot was not raised during the canvass of the votes will not preclude the court from subsequently considering such objection. People ex rel. Hasbrouck v. Supervisors (1892), 135 N. Y. 522.

Whether a ballot is or is not a marked ballot is an open question to be

determined as an issue of fact by the court. People ex rel. Hasbrouck v. Supervisors (1892), 135 N. Y. 522.

Inspectors must count all ballots whether objected to or not, and in a proceeding to obtain a writ of mandamus compelling them so to do the question as to whether the ballots were marked for identification cannot be raised. 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.

There is nothing for the inspectors to do except to count the ballots in the box. They are prohibited from reciving any having any mark on the outside or not properly indorsed, and if anything appears on the inside of the ballot not authorized by law they must preserve such ballot; then those interested have ample opportunity to deliberately investigate the matter, and after such investigation, if they think proper, present it to the court for its determination. 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.

Every inspector must sign the certificate containing a statement of canvass required by law. He cannot refuse to do so on the ground that he knows or believes that votes were cast by persons who had no right to cast them. If such persons have taken the required oaths the inspectors must receive the votes, and a mandamus will issue compelling them to sign the returns. People ex rel. Stapleton v. Bell (1890), 119 N. Y. 175.

An irregularity on the part of the inspectors in not complying with the law in making and filing their returns cannot be availed of by one who does not show himself to have been injured thereby. People ex rel. Hatzel v. Board, 58 How. 141.

The court, in its discretion, may decline to interfere to correct irregularities which do not affect the result of an election. People ex rel. May v. Strang (1910), 137 App. Div. 848, 122 N. Y. Supp. 617.

Where the notice of appeal includes a certain ballot as one of those in reference to which the petitioner questions the decision at special term, but his counsel fails to question the decision in his brief, the appellate court will not consider such ballot. Matter of Brown v. Bd. of Canvassers, Queens Co. (1915), 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

A ballot returned as "blank" and subsequently under a writ of mandamus indorsed as "wholly blank," but containing a valid ballot for one candidate, should be counted for him. 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.

Reversal of orders by Court of Appeals. - Orders, granting writs of mandamus in a proceeding to review an election, which have been affirmed by the Appellate Division and reversed" in whole or in part" by the Court of Appeals, and remitted to the Supreme Court for action, remain unaffected in so far as they command acts lawful within the decision of the Court of Appeals. 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.

Appeal to Court of Appeals. An order of the Appellate Division in a proceeding by mandamus for the recount of ballots objected to as marked for identification or rejected as void, and presenting a question of law for review, is appealable as a matter of right to the Court of Appeals as an order finally determining a special proceeding. People ex rel. Feeny v. Board of Canvassers

(1898), 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686.

Correction of return of inspectors so as to make a correct return of the bal lots counted by them may be compelled by the court irrespective of special provision of Election Law. People ex rel. Henness v. Douglass (1911), 142 App. Div. 224.

Filing of tally sheets and correction of mistakes therein may be compelled by mandamus. People ex rel. Henness v. Douglass (1911), 142 App. Div. 224. Determination of vote on town proposition by inspectors is conclusive, except in so far as review is allowed by statute. People ex rel. May v. Strang • (1910), 137 App. Div. 848, 122 N. Y. Supp. 617.

Mandamus must be expressly authorized. — A mandamus to compel a recount of protested ballots may not be maintained by virtue of any inherent powers of the court, but must be expressly authorized by statute. Matter of Tamney v. Atkins (July 14, 1913), 209 N. Y. 202, rev'g 151 App. Div. 309.

Review of town election. The amendment of 1899, section 37 of the town' law, that "The void and protested ballot and the voted ballots, other than void and protested, shall be preserved and disposed of by the inspectors in the manner provided by section 111 of the Election Law," did not operate to give the right of review under the provision of this section save where the town election is held at the same time as the general election in the fall of the year. Matter of Baldwin (1913), 80 Misc. 263.

If the result of the town election has been improperly declared by the town board of canvassers relator has a remedy by quo warranto proceedings, but not by mandamus under the provisions of this section. Matter of Baldwin (1913), 80 Misc. 263.

§ 382. Destruction of books, records and papers relating to the elections.

The officer or board with whom the statement of the result, the returns with tally sheets annxed together with the poll books of the election, the "identification statements for election day," the register of electors and the public copy thereof are filed after an election shall preserve the same for at least two years after the receipt thereof and until all suits or proceedings before any court or judge touching the same shall have been determined. At the expiration of such time such books, records and papers, except a poll book containing signatures of electors, may be destroyed by such officer. This section shall not apply to a city of over one million inhabitants.

Added by L. 1916, ch. 537, in effect May 15, 1916.

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