Opinion
January 16, 1918.
George H. Taylor, Jr. [ James H. Cavanaugh with him on the brief], for the appellant.
Arthur M. Johnson [ Sydney A. Syme and Frank A. Bennett with him on the brief], for the respondent.
The votes in this district were recanvassed under a procedure followed in other districts, but without affecting the result. The relator had asked relief against a single ballot marked for mayor "Dr. Brush," without christian name or initials. After recanvass relator further claimed to throw out three ballots; that is, besides the one marked "Dr. Brush," a ballot "Brush," and another "Mr. Brush." As we held, in the third district of the third ward, such ballots had not been legally protested. The order should, therefore, be reversed, because all the ballots for appellant Brush had been canvassed and counted by the inspectors without objection or protest (as has been decided in 181 App. Div. 705), so that there was no authority to reopen the ballot box and recanvass the votes.
Under section 514 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1917, chap. 815, § 6), we add that the inspectors' finding that these three soldiers intended to vote for Edward F. Brush should be controlling.
The order, however, is reversed, with ten dollars costs and disbursements.
JENKS, P.J., RICH, PUTNAM, BLACKMAR and KELLY, JJ., concurred.
Order of January 7, 1918, reversed, with ten dollars costs and disbursements.