
    The People ex rel. Frank Hasbrouck, App’lt, v. The Board of Canvassers of Dutchess County, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed March 26, 1892.)
    
    JMandamus—Notice.
    A peremptory writ of mandamus can only be granted upon notice to the board or officer to whom it is directed, and if granted without such notice must be quashed.
    Appeal from order of special term quashing peremptory writ of mandamus.
    
    Relator was the democratic candidate for county treasurer of Dutchess county at the election held in November, 1891. The 6/ •
    
    
      board of county canvassers rejected from the count eighteen republican ballots, from each of which the name of the candidate for justice of sessions was erased and another name substituted in writing instead thereof, and thirty-six other ballots claimed to be marked for identification, and filed a certificate giving the office-to relator by a plurality of thirty-seven votes. A mandamus on the relation of Isaac W. Sherrill, the republican candidate, was issued, in obedience to which the board reconvened and recanvassed the vote and allowed said marked ballots, and filed a statement which gave said relator a plurality of seventeen votes.
    Thereupon the relator herein obtained this peremptory mandamus commanding the board to reconvene and recanvass the vote, and to reject and not to count said marked ballots. No-notice of the application for said mandamus was given. The board made a return setting up the above facts, and Justice Barnard thereupon quashed the writ, and stated that there was a. failure of proof to sustain the writ; that the votes must be presumed to have been properly and honestly cast, unless there is-proof as to each voter to the contrary.
    
      Horace D. Hufcut, for app’lt; Wm. H. Wood, for resp’t.
   Pratt, J.

It is a sufficient answer to this appeal that the order-appealed from was right, because the peremptory writ of mandamus, which was dismissed, was issued without notice. Section 2070 of the Code, which gives the authority for granting a peremptory writ of mandamus, provides that such mandamus can be granted only upon notice given to the judge, corporation, board, or other body or officer to whom it is directed. That section of the Code also contains this provision: “ Except as prescribed in this section or by special provision of law, a peremptory writ of mandamus cannot be issued until an alternative mandamus has-been issued and duly served and the return day thereof has elapsed.”

We think, however, that the quashing of the writ was right-upon the merits, even had it been regularly issued upon notice. Section 31 of chapter 296 of the Laws of 1891, as amended, provides the manner in which the inspectors and canvassers should perform their duties, among other things, as follows:

“ When an inspector of election or other election officer or duly authorized watcher, shall, during a canvass of the votes, or immediately after the completion thereof, declare his belief that any particular ballot or paster affixed thereto has been written upon or marked in any way with the intent that the same may be identified, the inspectors shall write their names on the back thereof and attach it to the original certificate of canvass, and include in said certificate a statement of the specific grounds upon which the 'validity of such ballot is questioned. When the votes are to be-estimated and the result declared by a board of county canvassers or other officers performing similar duties, such board or officers shall mention separately in the statement or certificate-of canvass the number of votes thus questioned which were cast for each candidate, and the specific grounds upon which the same are claimed to be invalid as set forth in the original certificate of canvass. Such ballots shall be counted in estimating the result of an election ; but within thirty days after the filing of the certificate declaring such result a writ of mandamus may issue out of the supreme court against the board of canvassers or officers acting as such hoard, by whom the ballots were counted, upon the application of any candidate voted for at the election, to require a recount of the votes, and all questions relating to the validity of such ballots, and as to whether they were properly counted, shall be determined in such proceeding. All such ballots shall be preserved for at least one year, and until the questions raised by such writ shall he finally determined. Election boards and hoards of -canvassers shall he continued in existence for the purposes of such proceedings.”

There are two reasons why a long discussion need not now be indulged upon this statute: 1st. Because the order must be affirmed upon the ground first stated herein; and, 2d, because the law has been fully discussed and construed in the court of appeals in the late election cases.

To my mind as to the eighteen ballots in East Flushing the evidence was sufficient to establish a conspiracy for the purpose of -committing a fraud in casting of ballots, but what evidence shall be satisfactory proof that any one ballot was bought or cast in .¡.'rand of the law is a difficult subject to which to apply any cast iron rule, as the circumstances must differ in each case, but where a conspiracy is established to defraud, and some ballots containing a certain specified mark are shown to have been cast in pursuance -of such conspiracy, it seems to me that all ballots containing such .specified mark ought to be thrown out of the count.

It is utterly impracticable to prove an intent of each individual voter except by the voter himself, and such evidence cannot be •compelled, as that would require him to testify to his own dishonesty.

The law is, therefore, under such a construction, nugatory.

Order affirmed.

Dykman, J., concurs; Barnard, P. J., not sitting.  