Opinion
January 11, 1932.
Francis Bergan, for the petitioner.
Borden H. Mills, for the respondents Sholtes, Zimmer, Chandler, Schoonmaker, Truax, Schell, Bell, Wolford and Posson.
Walter L. Collins, for the respondents Settle, Norman, Westfall and Clykeman.
The motion of the respondents represented by Borden H. Mills, to dismiss the proceeding after a special appearance by Mr. Mills, is denied. ( Muslusky v. Lehigh Valley Coal Co., 225 N.Y. 584.)
The application of the petitioner for a peremptory order of mandamus against the respondents Sholtes, Zimmer, Settle and Norman, constituting the board of election inspectors of the first election district of the town of Knox, and the respondents Westfall, Chandler, Clykeman and Schoonmaker, constituting the board of election inspectors of the second election district of the town of Knox, is denied for the reason that this court has no jurisdiction either under the Election Law or by mandamus to compel the inspectors of election to recanvass the ballots.
As to the application to compel the respondents Truax, Schell, Bell, Wolford and Posson, constituting the town board of canvassers of said town of Knox, to correct the canvass of votes cast at the general election and biennial town meeting held in said town of Knox on November 3, 1931, the court will give the petitioner an opportunity to present such testimony as he may see fit, and to be heard further on that particular matter. The court, therefore, fixes two P.M. on Monday, February 2, 1932, at Part I court room in the Albany county court house, as the time and place for the taking of such testimony, and further consideration of this proceeding is adjourned to that time and place. The order to this effect must be served on the respondents' attorney not later than January 26, 1932.
The petitioner may submit an order accordingly.