In re BRUSH.
(Supreme Court, Appellate Division, Second Department.
May 7, 1902.)
Elections—“Recanvass” oe Votes.
Under Election Law, § 114 (Laws 1896, c. 909), authorizing a judicial investigation of ballots objected to as illegal, and in obedience to the rule of stare decisis, an opinion sanctioning a “recanvass” by the court of votes so objected to should not be construed as authorizing a second canvass of the same character as that required at the close of the election, where there is no claim that the number of votes shown by the tally sheet does not conform to the number shown by the poll book, but the investigation should be restricted to ballots objected to.
Appeal from special term.
Application by Edward F. Brush for recount of votes cast for the office of mayor of the city of Mt. Vernon, and for a writ of mandamus to various election officials ordering a recount. From an order granting the application, Edwin A. Fiske, an intervener, appeals.
Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
William N. Dykman, for appellant.
Roger M. Sherman, for respondent.
PER CURIAM.
In our former opinion (75 N. Y. Supp. 285) we intended to afford to the relator only such relief in these proceedings as was authorized by the decision in Feeney’s Case, 23 App. Div. 201, 48 N. Y. Supp. 866, affirmed 156 N. Y. 36, 50 N. E. 425, and by section 114 of the Election Law (Laws 1896, c. 909). But the learned special term was excusably misled by our use of the word “recanvass,” which was not intended to sanction a second canvass of the same character as that required at the close of the election. We intended only *598.to hold that, when the proceedings included the proper parties, the special term, upon the papers before us, would be justified in ordering a judicial investigation of such a character as that which was had in Feeney’s Case. In this view the order appealed from must be reversed, and the proceedings remitted to the special term, to the end that such an investigation may there be ordered.
Order reversed, without costs.