
    The People of the State of New York ex rel. William N. Courtney, Respondent, v. George Unger and Others, Acting Board of Inspectors and Canvassers of the Town of Arietta, Hamilton County, N. Y., and Oscar L. Howland, Town Clerk of said Town of Arietta, Appellants.
    (No. 1.)
    
      Mandamus — an order to show cause requiring the production of a ballot before the court, and its examination by the court, without objection made— it presents only a question of law —failure to pi'oduce the ballot on appeal from an order directing that the ballot be counted.
    
    An order to show cause why a peremptory writ of mandamus should not he granted, requiring a hoard of town canvassers to count a ballot which they had rejected as void, contained a clause directing the ballot box to be produced before the court at which the order to show cause was returnable. Upon the return day the justice opened the ballot box and examined the ballots, and thereupon made an order directing the board of canvassers to reconvene and count the ballot in question.
    No motion was made to strike out the clause contained in the order to show cause directing the ballot box to be produced before the Special Term, nor was any objection made upon the argument of the motion to the action of the judge in inspecting the ballot.
    Upon an appeal from the order directing the ballot to be counted, it was
    
      He Id, that, as the ballot in question was before the court at Special Term, all questions of fact upon the affidavits as to what was the form of the ballot were immaterial and did not raise an issue requiring the granting of an alternative writ, the only question being one of law as to what were the rights of the parties in regard to the ballot before the court;
    That, as the ballot in question or a copy thereof had not been produced before the Appellate Division, that court was powerless to determine whether or not the judge at Special Term properly decided that the ballot was valid, and that the appeal should, for this reason, be dismissed.
    Parker, P. J., dissented. ■
    
      Appeal "by the defendants,' George linger and others, acting board of inspectors and canvassers of the town of Arietta, Hamilton county, N. Y., and another, from so much of an order .of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Hamilton on the ,9th day of April, 1901, as directs that a peremptory writ of mandamus issue to compel the said board of inspectors. and canvassers to recount the votes cast at a certain election and upon such recount to recount the votes upon an original count.
    
      Eugene D. Scribner, for the appellants.
    
      Fronde L. Anderson and Andrew J. Wellis, for the respondent.
   Smith, J.:

Upon the canvass of the votes cask at a town meeting in the town of Arietta on March 19, 1901, the board of canvassers rejected one vote as being void, and indorsed the same “ Marked for identification.” This application was made for a peremptory writ of mandamus'compelling the board to count the said ballot. In the order to show cause why the peremptory writ should not be granted, the justice granting the same directed the ballot box to be presented to the court at which the said order was returnable. Upon the return of the order the justice opened the ballot box and examined the ballots, and thereupon made the order directing the board to reconvene and count the said ballot. From' this order this appeal is taken.

The power of the judge at Special Term, upon the hearing, of this motion, to open the ballot box and inspect the ballots cannot here be challenged. The order directing that the ballot box be produced for opening having" been included in the order to show cause, and no motion having been made to strike this provision therefrom, the question is not here for review. Nor does it appear that upon the argument of the motion any objection was made that the judge at Special Term make inspection of the ballot.

The ballot .then being before the court all questions.of fact upon the affidavits as to what was the form of the ballot are immatérial and do not raise an issue which requires the granting of an alternative writ. The question then was a question of law, as to what were the rights of the parties upon the ballot which was before the court. If this question had been improperly decided by the learned judge at Special Term, this court would have the power, upon this appeal, to review his decision; but we are confronted with the difficulty that the ballot has not been produced before us, nor have we any copy thereof from which we can determine whether or not the judge properly decided that this ballot was valid. If we assume for the argument that a ballot so marked as to be void should not be counted, although indorsed “ Marked for identification,” we are required upon this appeal to assume in support of the order appealed from that the ballot was not so marked as to be void in the absence of the ballot itself or of a copy thereof. As we are unable then from the lack of a proper record to consider this appeal upon its merits, the appeal itself should be dismissed, with ten dollars costs and disbursements.

All concurred, except Parker, P. J[., dissenting.

Appeal dismissed, with ten dollars costs and disbursements.  