
    In the Matter of Bernard J. Tumulty, Petitioner, against Joseph M. Power et al., Constituting the Board of Elections of the City of New York, Respondents.
    Supreme Court, Special Term, Queens County,
    September 16, 1958.
    
      Silver & Manning for petitioner.
    
      Charles Margett for John F. Dufficy, respondent.
    
      Peter Campbell Brown, Corporation Counsel, for Joseph M. Power and others, respondents.
   John F. Scileppi, J.

The petitioner, Bernard J. Tumulty, an aggrieved candidate, applies for an order directing the Board of Elections of the City of New York and the Board of Canvassers of the County of Queens to open and inspect the ballot boxes and to direct a recount and recanvass with respect to the votes cast in 22 specified election districts (reduced upon oral argument to 18) for the party position of Male Assembly District Leader in Part 28 of the 13th Assembly District, Queens County, New York, in the Democratic primary election held on August 12, 1958.

The election districts in which the recount is sought constitute a portion of the total number of 35 election districts in which the candidates ran for said position. Respondent John F. Dufficy, who was declared the successful candidate by a margin of 10 votes, has no objection to the granting of an order for such a recount and recanvass, but urges that the same should be held with respect to all votes cast in all the election districts in which the election was held.

The recount and recanvass of votes cast should not be limited solely to the election districts specified by the aggrieved candidate and in which he believes he may increase the count in his favor. To do so would permit him to obtain a recount in election districts in which he lost or where the vote was close but not in election districts where his opponent succeeded in outvoting him.

The mistakes which petitioner claims have been made by the election officials are of such a nature, i.e., improper counting and tallying of ballots, and cover such a large portion of the total districts in which the election was held that only a recanvass of all the votes cast in all the election districts would be fair and just to both candidates and would best serve to protect their interests and the interests of those who voted for them. (Matter of Quinn v. Power, 13 Misc 2d 677, mod. on other grounds, 1 A D 2d 704.)

Since the application is not otherwise opposed, petitioner’s application is granted to the extent that a recount and recanvass shall be made of each and every one of the election districts in which the candidates ran for the designated position on condition that the cost and expense of such recount and recanvass be borne solely by the petitioner.

Submit order.  