People ex rel. Fiske v. Bantz 222 N.Y. 681

The People of the State of New York ex rel. Edwin W. Fiske, Appellant, v. Henry Bantz et al., as Inspectors of Election in the Third Election District of the Third Ward of the City of Mount Vernon, et al., Defendants, and Edward F. Brush, Respondent.

People ex rel. Fiske v. Bantz, 181 App. Div.-, affirmed.

(Argued January 28, 1918;

decided February 5, 1918.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which reversed an order of Special Term granting a motion for a peremptory writ of man-*682damns. By a supplemental official return as to the soldiers’ and sailors’ ballots canvassed in the third election district of the third ward of the city of Mount Vernon, made by the inspectors of election thereof, pursuant to an order of the Special Term, it was made to appear that all of said ballots were protested. The relator applied for an order directing a subsequent canvass thereof under the provisions of section 381 of the Election Law, if the ballots were “ protested ” ballots, as determined by the aforesaid order. The Special Term directed the subsequent canvass. It appearing on such canvass that the soldiers’ votes actually cast from this district were eight for the relator Fiske and five for the respondent Brush, whereas the original return of the inspectors which the county board of canvassers of Westchester county had canvassed purported to show that eight of such votes had been cast for the respondent Brush, and only five of such votes had been cast for the relator Fiske, the Special Term made an order under section 433 of the Election Law directing that a writ of mandamus issue, commanding said county board of canvassers to reconvene and make a recanvass of the returns from said district in accordance with the true result. The Appellate Division reversed the Special Term order upon the ground that, as a matter of law, the relator was not entitled to any relief herein.

Sydney A. Syme,, Arthur M. Johnson and Frank A. Bennett for appellant.

George H. Taylor, Jr., James H. Cavanaugh and J. Henry Esser for respondent.