
    In the Matter of Theodore G. Weinberger, Appellant, v. Edith Jackson et al., Constituting the Board of Inspectors of Election of the Village of Kensington, et al., Respondents.
   Beldock, P. J., Rabin and Benjamin, JJ., concur; Christ, J. concurs in result, with the following memorandum, in which Munder, J. concurs: There were 23 votes counted for respondent Epstein and properly marked for him, but these were on ballots where there was an improper marking for the trustee Landsberg. The marks for Landsberg were not in the voting square and, under the applicable statute (Election Law, § 212), I am of the opinion that such a mark makes the whole ballot void. The statute, so far as pertinent, reads: “ § 212. Rides for counting votes. Rule 1. The whole ballot is void if the voter * '' *• (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square or circle, or other than the- writing in of a name for the purpose of voting; except that an erasure or mark other than a cross X mark or a check V mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or question in connection with which it is made.” It appears to me that the literal reading of this provision indicates that whenever a mark is made outside of the voting square the whole ballot is voided. However, if an erroneous marking is made within a voting square, then only the vote for that office is voided. In this case, since the markings were outside of the voting square, the entire ballot cannot be counted. Under such circumstances, the 23 votes cast for Epstein for Police Justice must be disregarded. If the votes for appellant under the office of Police Justice, marked outside the election square, are disregarded along with the 23 votes hereinbefore referred to as counted for Epstein, appellant will nevertheless have a majority vote and should be declared elected. This follows the statute and accords, in result, with what unquestionably was the intention and desire of the voters of the village.  