Opinion
April 22, 1910.
John J. Torpy [ Benjamin Fagan with him on the brief], for the appellant.
Nathan P. Bushnell, for the respondents.
On the 29th day of November, 1909, petitioner applied for a peremptory writ of mandamus to compel the inspectors of election of election districts numbered 1, 2 and 3, in the town of Yorktown, who acted at the general election held on November 2, 1909, to make corrections in their statement of canvass, to cause their canvass and count of the ballots in the said several election districts to be correctly stated and canvassed, and to proceed to a recount of the ballots objected to as marked for identification or as void. The action of the inspectors which it was sought to review related to ballots designated "town propositions submitted," such propositions relating to local option in the said town. The application is based upon two grounds: First, that the board of inspectors erred in their determination as to certain ballots claimed to be void or protested ballots; and, second, that as to the ballots which were cast in election district No. 1, relating to "town propositions submitted," the canvass was made by a part only of the inspectors in that district.
If this proceeding be treated as one under the Election Law for a judicial review of the acts of the inspectors, so far as the same relate to a count and canvass of the void and protested ballots, relator is met by the insuperable objection that his application was made too late. The application for a judicial investigation of such ballots must be made within twenty days after the date upon which the election was held. (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 381.) Relator claims that the language of this section, strictly interpreted, relates only to ballots cast for candidates for public office, and not to those cast by electors upon public questions, and that this proceeding is not had under the Election Law. If that be so, then relator is without remedy, for the Legislature has chosen to make the determination of the inspectors of election final and conclusive upon these questions, except in so far as it has by appropriate statute provided for some review thereof. This it was within their power to do. ( People ex rel. Brink v. Way, 179 N.Y. 174; Matter of Hearst v. Woelper, 183 id. 274; People ex rel. March v. Beam, 188 id. 266.) Neither is the relator entitled to any relief upon the ground that the actual count and canvass in one of the election districts was not participated in by one of the members of the board. This is not the case of an incomplete canvass, where the votes had not been counted at all. At most, it was an erroneous canvass. The distinction has been recognized. ( People ex rel. McLaughlin v. Aumenwerth, 135 App. Div. 893; affd., 197 N.Y. 340.) Beyond that, the moving papers fail to show that if this be treated as an incomplete canvass so far as this election district is concerned, the result of the election will be affected thereby. There is no statement as to the number of ballots cast in that district, nor how many of them were marked void or protested. The court in its discretion may decline to interfere to correct irregularities which do not affect the result of an election. ( People v. Cook, 8 N.Y. 67.) The order appealed from fails to show that the application was not denied in the exercise of discretion, instead of as matter of right. If so, we cannot say that on these papers the discretion was not wisely exercised.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., JENKS, RICH and CARR, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.