Opinion
October 18, 1941.
One hundred ninety-two ballots have been submitted to us for examination, being marked consecutively Exhibits 1 to 192. The following is our decision thereon: On the argument the parties have stipulated that the following ballots may be counted for Smith: Exhibits numbered 2, 3, 7, 16, 17, 18, 22, 24, 26, 33, 35, 38, 39, 40, 42, 43, 44, 47, 48, 49, 53, 55, 56, 57, 59, 61, 62, 63, 64, 69, 71, 73, 77, 78, 79, 88, 89, 91, 92, 119, 120, 121, 123, 124, 144, 161, 162, 185, 186, 188, 190; a total of 51; and that the following ballots may be counted for Briggs: Exhibits numbered 21, 27, 28, 30, 31, 50, 52, 58, 60, 67, 68, 74, 75, 76, 82, 83, 85, 86, 90, 93, 94, 95, 98, 101, 102, 103, 104, 105, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 125, 126, 127, 128, 129, 131, 132, 133, 134, 135, 136, 137, 139, 140, 141, 142, 143, 145, 147, 148, 149, 150, 151, 152, 154, 155, 156, 158, 159, 163, 165, 168, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 181, 187, 189, 191, 192; a total of 90. On the remaining ballots submitted to us our rulings affirm the court below except as to the ballots bearing the following exhibit numbers: 5, 13, 65, 100, 146 and 183, which were held void by the court below and are held by us to be valid ballots, and votes for Briggs, and ballot numbered 32, which was held void by the court below, is held by us to be valid and a vote for Smith. The decision of the court below is reversed on the law and facts as to ballots numbered 5, 13, 32, 65, 100, 146 and 183, and the court makes its findings of fact that the seven ballots are valid ballots. The court makes the further findings that ballots bearing exhibit numbers 25, 45, 80, 99, 182 and 184 are void. This finding as to void ballots is an affirmance of the findings of the court below. The 186 ballots marked as exhibits and by us determined not to be void ballots, including therein those stipulated to be valid, are divided as follows: Briggs received 130 votes, and Smith received 56 votes. Ballots unquestioned and counted by the election commissioners of Cortland county are as follows: For Briggs, 1,352; for Smith 1,423, making the result of the primary election: For Briggs, 1,482; for Smith, 1,479. The judgment of the court is that Leslie E. Briggs was nominated at the primary election as the Republican candidate for the office of district attorney in the county of Cortland, and the election commissioners are directed to correct their records in accordance with this determination and to certify the nomination of Leslie E. Briggs in accordance herewith. Order of the court below is reversed in the particulars indicated on the law and facts in accordance with the foregoing, without costs. Leave is hereby granted to either party to appeal to the Court of Appeals. The court certifies that questions of law have arisen which in its opinion ought to be reviewed by the Court of Appeals. Hill, P.J., Bliss, Heffernan, Schenck and Foster, JJ., concur.