
    The People of the State of New York ex rel. B. Frank Kathan, Respondent, v. The County Board of Canvassers of Hamilton County, N. Y., and Elmer Ostrander, as Secretary of said Board and as County Clerk of Hamilton County, Defendants. James N. Locke, Appellant.
    
      E lection—duty of a county board of canvassers to certify separately the several names voted for and the ballots cast for each — they may not consider affidavits as to the party intended to be voted for — notice of appeal incorrectly describing the order appealed from — party to a mandamus pn'oceeding against the board of canvassers.
    
    Where the only nomination for .the office of sheriff in a county is that of B. Frank Kathan, and, after the election, it is found, upon a canvass of the votes, that Kathan received two hundred and eighty-six votes and that Nat Locke received two hundred and twenty-two votes, Nate Lock eight, James N. Lock twenty-four, N. Locke four, Nathan Lock two, J. N. Locke thirty-two and Nathaniel Locke sixteen, the county board of canvassers has no power to determine that all the votes cast at the election other than those cast for Kathan were cast for James N. Locke and to issue a certificate- of election to him, but should certify separately the several names voted for and the ballots cast for each, and issue the certificate of election to Kathan, who, on the face of such return, would be entitled thereto.
    Neither the county board of canvassers, when determining to whom the certificate of election should be issued, nor the court, in a proceeding to review the determination of the county board of canvassers, has power to consider affidavits from which it appears that there was only one man by the name of Locke who could have been intended by the voters and that he was known by the different names for which ballots were cast.
    A notice of appeal which incorrectly states the date of the order appealed from, but correctly describes it as an order making the appellant a party to the proceeding, sufficiently identifies the order.
    Where, upon a motion for a writ of mandamus, an interested party appears specially and raises the point that he was not, and should be, a party to the proceeding, and the court, upon its own motion, enters an order making him a party, and such person raises no objection thereto until after the proceeding has resulted unfavorably to him, an appeal taken by him from the order will be dismissed.
    Appeal by James N. Locke from an order of the Supreme Court, made at the Saratoga Special Term bearing date the 14th day of December, 1901, and entered in the office of the clerk of the county of Hamilton, making the appellant, Jamies N. Locke, a party to'the proceeding, and also from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Hamilton on the 30th day of December, 1901, directing the issuance of a peremptory writ of mandamus to the County Board of Canvassers of Hamilton County, N. V., commanding them to reconvene and recanvass the votes cast for the office of sheriff at an election held on November 5, 1901, and also from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Hamilton on the 1st day of February, 1902, directing the issuance of an alias writ of mandamus to the County Board of Canvassers of Hamilton County, N. T.
    In 1901 the respondent, B. Frank Kathan, was nominated for the office of sheriff by the Republican party in the county of Hamilton. No other nomination was made. After the election upon the canvass of the votes it was found that Kathan had received 286 votes for the office. Nat Locke had received 222, Nate Lock 8, James N. Locke 24, N. Locke 4, Nathan Lock 2, J. N. Locke 32, Nathaniel Locke 16. If all'of these votes were deemed cast for James N. Locke he would have received 308 votes and have been elected. Two were cast for PL N. Locke and 1 for N. J. Locke, and in column marked “no nomination,” 15 ballots had the name of Nat Locke for sheriff.- These votes added to the 308 votes made 326 votes. The board of canvassers certified that B. Frank Nathan had received 286 votes for the office of sheriff, and that James N. Locke had received 326 votes and was elected to said office. The said board then adjourned. Thereafter this respondent made a motion for a peremptory- writ of mandamus to compel the canvassers to reconvene and recánvass said votes so as to show the names for which ballots were cast and the number cast for each of said names. Upon a hearing of that motion this appellant appeared specially and made objection that he was not, and should be a party to this proceeding. Thereupon the court,, upon its own motion, made an order bringing him in as a party, which is the first order here appealed from. After appellant was made a party the matter came before the ■ Special Term, which granted the writ asked for and directed the canvassers to reconvene and state the specific names voted for and the number of ballots cast for each name. This is the second order here appealed from. Pursuant to this writ the canvassers did meet and set forth in their report the matter requested to be set forth, and further assumed to determine and certify that James N. Locke had received 326 votes, being the person intended by those votes cast for the various names heretofore set forth. Thereupon an order was granted directing, the issuance of a second writ, which is here called an alias writ, commanding the board to certify that B. Frank Nathan had received the greater number of votes for sheriff, and to certify to his election. This order is the third order from which the appeal is here taken.
    
      M. D. Murray and Andrew J. Nellis, for the appellant. .
    
      James R. Van Ness, for the respondent.
   Smith, J.

In the appeal from the order of Justice Houghton, bringing in the appellant as a party to this proceeding, it is first objected that the notice of appeal does not sufficiently identify the order. . While the date of the order is incorrectly stated in the notice of appeal, the notice of appeal specifies the order appealed from as the order bringing in the appellant as a party. This description sufficiently identifies the orde,r. The order was made, however, upon the objection of the appellant that he was “.not, and should be” a party to the proceeding, and in the subsequent proceedings no objection was made by him that he was not properly there. Of an order made under such circumstances we think the appellant has no cause of complaint, and that his appeal should be dismissed.

The appellant objects to the granting of the writ of mandamus upon the ground that the board had completed its work and adjourned. While this objection might have been good under the old law, specific provision has been made for such an emergency by section 133 of the Election Law (Laws of 1896, chap. 909). In that section it is specifically provided that, if the board of canvassers shall have made its determination and dissolved, such board might be reconvened for the purpose of making any proper correction or per- , forming any other duty. If, then, this board of canvassers had improperly canvassed the votes or had made an improper certificate, these writs were properly ordered.

Were these writs then justified upon the merits ? By section 135 of the Election Law (as amd. by Laws of 1897, chap. 379) the board of canvassers were required, upon the completion of the canvass, to make a statement “ as to all the votes cast for each county office.” Section 136 (as amd. by Laws of 1897, chap. 379) provides: “ Upon the completion of the statements required by section one hundred ■and thirty-five of this act, the board of canvassers for each county shall determine "x" * * each person elected by the greatest number of votes to each county office of such county to be filled at such election * * *.” These sections have been the subject of judicial construction. In Kortz v. Board of Canvassers of Greene County (12 Abb. N. C. 84) it was held that “ a board of county canvassers has no power to determine that votes cast for and returned to one name, e.- g., Andrew 0. Getty, were intended for ■and should be counted and allowed to a person bearing another name, Andrew H. Getty. It has no power to take proof as to such facts nor to make such determination in its absence. Upon an ■application for a mandamus under U. 1880, c. 460, authorizing the writ to correct errors in the determination of boards of county canvassers, the court has no greater power than the board itself and must direct a canvass of the vote as cast even, though it appear by affidavits that the votes were all intended for the one person.” The act referred to has been substantially re-enacted in the Election Law (§ 133).

In People ex rel. Yates v. Ferguson (8 Cow. 102), in an action of quo warranto on an issue to try whether one was elected Co. Clerk, ’ whose name at length was Henry F. Tates; Held that votes for H. F. Tates were allowable if, under all the circumstances, the jury should believe that they were intended by the voters for Henry F. Tates.” In that case the opinion quotes the statute, which reads, which ballot shall also be a paper ticket containing * * * the name of a person for clerk of said county.” At page 106 the opinion reads : “ A name I understand to be a discriminative appellation or designation of an individual. This is so understood universally, and the state canvassers, in the rules adopted by them, to which the learned judge at the trial referred, so understand it. They admit the letters Geo. to represent George. Why ? Because, by common consent, they are admitted to represent that word. So they receive Hen. for Henry, not because the man’s name is Hen, but because Hen. is universally admitted to represent Henry. The state canvassers, then, do not confine themselves to names written or printed at full length, but they take abbreviations. Why do they receive abbreviations when the act says the ballot shall contain the name % The answer must be because the abbreviation is evidence of the intent of the .voter. The intent of the voter is to be ascertained ■ by the canvassers, not by examining witnesses or testimony of any description, except that which is inherent in the ballot itself. From this the canvassers adjudge that the abbreviation represents the, word, which word represents the name of the person voted for.”

In People v. Cook (8 N. Y. 67) it was held that the Board of State Canvassers act, in main, ministerially in making their certificates; “ they cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benjamin C. Welch, Jr., and for Benjamin Welch. * * ■ ^ Their judicial power extends no further than to take notice of such matters of public notoriety, as that certain well-known abbreviations are generally used to designate particular .names, and the like.” They cannot hear evidence beyond the return to show the intention of the voters.” This was an action of quo warranto, and it was there held that in that action the Supreme Court had power to go behind the certificate of the canvassers to ascertain the intention of voters in depositing their ballots.

In People ex rel. Derby v. Rice (129 N. Y. 461) it is held that “ the office of a board of state canvassers is purely ministerial, no judicial powers are vested in them. They are simply authorized to compute the votes cast throughout the State and determine, upon statements made up from the returns of the boards of county canvassers, what persons have received the greatest number of votes, and upon the statements so made they must declare those persons to be duly elected. No other evidence may be received or used and no declaration may be made by such a board except as based upon a determination arrived at by the statements made up by it in an arithmetical manner from the various official returns before them.” The opinion in part reads: The plain reading of the words of the law must be followed, and that inevitably forbids us to entertain an opinion that any judicial powers are vested in the board of canvassers. The members convene, under the statute, to determine upon the statements, which they must make from the statements returned by the boards of county canvassers, what persons have been by the greatest number of votes elected to office. They are not, in any general sense, to determine. They must determine upon such statements as they have made up in an arithmetical manner from the various official returns before them. It is upon such statements, so made, that they must declare what persons have been duly elected. That is the evidence, and all of it, which the statute permits in connection with, the election and a declaration by the board of canvassers of its results. No declaration can be made except as based upon a determination reached upon that particular evidence.” And, further: “ To imply the possession of a power to determine otherwise than upon the evidence, which the statute provides for; to invest this board, so manifestly created for the fulfillment of a mere ministerial function, with'any judicial powers, would be counter to the plain terms of the statute.” The cases last cited define the nature of the determination which is made by the State canvassers. ■ In the statute, however, the same power of determination seems to be given both to the county and to the State canvassers, and that power has been held as ministerial only, and not judicial, and a power to determine only from the evidence apparent from the ballot itself.

Within the rules stated by these authorities we find no justification for the action of the County canvassers. . It can hardly be claimed that Nat. Locke is an abbreviation for James N. Locke, or that James N. Locke is an abbreviation for Nat. Locke. There is nothing upon the ballots and no evidence before the board which can reach the dignity of any proof that those ballots were cast for the same person. There had been no nomination of any one by the name of Locke. These canvassers had no knowledge, as far as the records show, that there was such a man in existence as James Nathaniel Locke. When, therefore, the board of canvassers assumed to determine that the various ballots cast for James N. Locke, Nat. Locke, J. N. Locke and Nathaniel Locke, were all cast for James N. Locke they clearly exceeded their power, and the court properly ordered them to certify separately the several names voted for and the ballots cast for each. Upon the face of the return B. Frank Kathan had received a majority of the votes, and was' entitled to the certificate of election from the board of canvassers.

- It is true that by the affidavits it appears that there was only one man by the name of Locke who could have been'intended, and that he was known by these different appellations, but neither the board of canvassers nor the court upon this application has any right to receive that evidence. The title of office cannot be tried in this proceeding. The power and duty of the court is to compel the board of canvassers to make the report directed by statute, and the ultimate rights of- the parties can only be determined by an action in which the title to the office can be fully tried. The orders directing the two writs of mandamus were, therefore,- properly made, and should be affirmed.

All concurred.

Appeal from order directing appellant to be made a party to this proceeding dismissed, with ten dollars costs. . Orders directing peremptory writs of mandamus affirmed; with ten dollars costs and disbursements upon the one appeal.  