
    The People of the State of New York ex rel. Oscar Thorn, Respondent, v. Jeremiah Pangburn, Jr., Appellant.
    
      Election of ihe secretary of a ■ corporation— a ballot showing the neones of two candidates, one printed and the other written, not counted — when the rule that written prevails over pi'inted, matter does not apply.
    
    In an action, in tlie nature of an action of quo warranto, it appeared that there was an election of a secretary of the Retail Coal Exchange of New York city, under the by-laws of which' corporation a majority vote of the members present and voting was necessary to elect — the mode of taking a vote or ballot on any question being declared to he in such a manner as the meeting should decide.
    At a meeting held prior to the election the defendant was nominated for secretary, and at the annual meeting printed lists of nominees were furnished, on which, among others, the defendant’s name was printed as a candidate for secretary, and below it was a blank space of about half an inch. These printed slips were distributed among the members, and the presiding officer, having called for and .announced additional nominations, among which was that of the relator for the office of secretary, then directed ■“ that the members would please write those in, that is, proceed to complete the ballot, * * * after which a recess was declared for the preparation of ballots.”
    The question as to who was elected turned upon two ballots, each containing the following: “For Secretary, J. Pangburn, Jr.” (in print), “ Oscar Thorn” (in writing).
    
      Held, that the two ballots were defective and could not be counted for either candidate;
    That as the president of the corporation, with the acquiescence of the voting members, had directed them to write the name of Oscar Thorn upon the ballot before making their choice, the evident intention was that the ballot, as prepared, should show the names of both candidates, and then that the voter should erase one name, and that, therefore, a ballot upon which the names of both candidates appeared afforded no information as to the preference of the voter.
    Appeal, by the defendant, Jeremiah Pangburn, Jr., from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the, office of the clerk of said court on the 9th day of November, 1895, upon the decision of the court rendered after a trial before the court without a jury.
    ■The action was in the nature of an action of quo warranto, ousting the defendant from the office of. secretary of the Retail Coal Exchange of the city of New York, and adjudging that the relator is rightfully entitled to the office.
    
      The Retail Coal Exchange, of this city, is a corporation duly organized under the laws of the State of New York, having, among other officers, a secretary, who, according to the by-laws, is to be elected annually at the first meeting in December of each year, which election is to be by ballot.
    On December 7, 1894, at a meeting of this corporation, nominations for officers for the year 1895 were made, at which Jeremiah Pangburn, Jr., was nominated for secretary. The annual meeting was held December 21, 1894. The secretary brought to this meeting the’ printed list of nominees, whereon, for secretary, appeared the defendant’s name, and following that name was a blank space of about half an inch. The chairman called for additional nominations for secretary, and the relator was then also nominated. The printed slips were distributed among the members, and the presiding officer announced the additional nominations made at this meeting, and directed “ that the members would please write those in, that is, proceed to complete the ballot * * * after which a recess was declared for the preparation of ballots.” Under the by-laws, “ a majority vote of the members present and voting shall be necessary to electand “ the mode of taking a vote or ballot on any question shall be in such manner as the meeting shall decide.”
    After the recess ballots were cast, and the count showed that of the forty-two ballots cast, twenty-one had the printed name--. “ J. Pangburn, Jr.,” and the name “Oscar Thorn,” in writing, underneath it, with a line drawn through the name “ J. Pangburn, Jr.seven had the name “J. Pangburn, Jr.,” in print, and the name “ Oscar Thorn,” in writing, underneath it, with a line drawn through the name “ Oscar Thorn ; ” twelve had the name “ J. Pang-burn, Jr.,” in print only; and two had the name “ J. Pangburn, Jr.,” in print, and the name “ Oscar Thorn,” in writing, underneath it, with neither name crossed off, so that these two ballots read:
    “ For Secretary,
    “ J. Pangburn, Jr. [in print].
    
      “ Oscar Thorn ” [in writing].
    The inspectors of election decided that these two ballots were defective, and the president of the Exchange declared that there had been no election for secretary, and ordered another vote to be taken, which was immediately done, and showed nineteen for Mr. Thorn and twenty-four for Mr. Pangburn, whereupon Mr. Pang-burn was declared duly elected and installed in-- office. -
    The action was tried by the court without a jury, and the decision rendered was to the effect that the tellers erred in declaring the said two ballots defective, and from the judgment entered upon that decision this appeal is taken.
    
      Louis Wertheimer, for the appellant.
    
      Robert A. B. Dayton, for the respondent.
   O’Brien, J.:

It is not disputed but that if these two ballots were defective, the ruling of the chairman that there had been no election for secretary was right, because in that event neither of the candidates had received a majority vote of the members present and voting, as required by the by-laws. The crucial question, therefore, is, were these ballots defective ?

The respondent contends that they were not, and in support of such contention cites the case of People v. Saxton (22 N. Y. 310), which was followed in People ex rel. Gregory v. Love (63 Barb. 535). In the-Saxton case there were three candidates for the office of county clerk, who were to be voted for upon separate printed ballots. Upon the printed ballots containing the names of the other candidates the name of Saxton appeared in writing. It was therein held, in regard to the intention of the voter, as to whether such a ballot should be counted in favor of tlie written or the printed name, that “ writing a name upon a ballot in connection with the title of an office, is such a designation of the name for that office ás to satisfy the statute, although he omits to strike out a name printed upon it in connection with the same office. The writing is to prevail as the highest evidence of his intention.?’ This is but another application of the well-settled rule that where there is any repugnancy between the written and printed portions of an instrument, the written portion is to prevail over that which is printed. And where, as in that case, upon a ballot which contained the name of another candidate, a person wrote the name of the candidate Saxton, erasing the printed name, there was no difficulty in getting at what was the intention of the voter.

That case, however, is clearly distinguishable from the one at bar. Here the nominations first made were all printed, and other nominations were permissible upon the day of the election; and .the relator having been presented for the office of secretary, the direction of the president was that his name should then be written on the ballot which contained the printed names of all the other candidates ; and with a view of having all the ballots so arranged before they were cast for any candidate, a recess was ordered and a direction by the chairman made as to the manner of malting up the ballot. It is true that some of the members neglected to complete the ballots by writing in the name of Thorn; but the effect of this upon the validity of such ballots when cast, we are not called upon to determine. The by-laws provide that the “ mode of taking a vote or ballot on any question shall be in such manner as the meeting shall decide.” And the acquiescence of members in the direction of the president as to the manner in which the ballots were to be prepared before proceeding to an election must be regarded, in the absence of any other action by the meeting, as controlling. Be that as it may, however, the great majority of those present and .voting proceeded to comply with the directions of the president by placing in writing under the printed name of the defendant the name of the relator, and when the ballots were thus all prepared, as is shown by the result, many who desired to vote for Pangburn erased the name of Thom written upon the ballot; and many who desired to vote for Thorn erased the printed name of Pangburn. On the two ballots in question both names appear, without either being erased, and as there was no means of determining for whom these were intended we think the inspectors of election were right in holding that they were defective and should not be counted.

The distinction between the Saxton case and this is clear. In the former, the writing of the name raised the presumption that it was the voter’s intention to vote for the man whose name he wrote upon the ballot, and it was the only means by which he could indicate such choice, while here the voter was directed to write the name of Thorn on the printed ballot before lie could make his choice. In the Saxton case the voter designated his' choice by writing a name, while in this case he could only designate' his choice by not striking out,a name. Under such circumstances, therefore^ the mere writing of a name upon the ballot underneath the printed name for the same office could raise no presumption that the person writing it intended to vote for the one whose name appeared thereon in writing, as against the person whose name was printed,

After both names were on the ballot the choice of the voter was to be indicated by crossing out the one for whom he did not intend to vote. Unless this were done there was nothing to indicate the voter’s choice. It was error, therefore, to hold upon the facts here appearing that the written name -took any precedence over the printed one. We think the inspectors were, right in holding that the persons casting the disputed ballots had under the mode prescribed failed to indicate their choice,

The judgment appealed from should be reversed and there should be judgment in favor of the defendant dismissing the complaint, with costs.

Van Brunt, P. J.,. Barrett, Rümsey and Ingraham, JJ., concurred.

Judgment reversed and judgment ordered in favor of defendant . dismissing, the complaint, with costs,.  