
    Third Department,
    October, 1962
    (October 3, 1962)
    In the Matter of John P. Callanan, Sr.
   Appeal from an order of a Special Term, Supreme Court, Schuyler County. In this proceeding pursuant to section 333 of the Election Law, instituted five days after the primary election of September 6, 1962, petitioner as a candidate for the Republican nomination of Member of Assembly in Schuyler County seeks an examination of all the ballots cast at the primary election. The official canvass shows petitioner was defeated by 29 votes. A total of 2,811 votes was cast. The office of County Treasurer was the only other office at issue in the primary. A total of 2,811 votes was also east for this office. There were 81 votes marked “ void ” in the Assembly contest and the same number in the County Treasurer contest. In 13 of the 19 election districts the official canvass shows that the number of ballots marked “ void ” was identical for both offices. The court at Special Term has dismissed the petition on the ground no sufficient factual showing has been made by petitioner to warrant examination of any ballots. The printed ballots carried the voting boxes for the two offices close together; an erroneous mark or other mistake in voting for one office would not necessarily void a vote for the other office; and the exact coincidence of the number of void ballots for both offices in so many districts suggests the possibility of error of judgment on the part of election inspectors in holding some of the ballots to be void. We are of opinion, therefore, that a sufficient showing has been made to justify the inspection of the ballots only which were classified as “void”. The court’s authority under section 333 is to allow an inspection “ upon such conditions as may be proper ”. The relief to which we have found appellant entitled, is granted pursuant to section 333 of the Election Law and we do not pass upon whatever question may exist as to the sufficiency of the petition to warrant relief under subdivision 4 of section 330, or as to the treatment which might be accorded an application to amend the present petition so as to conform thereto. Order modified on the law and the facts to direct an inspection of the void ballots; and as thus modified affirmed, without costs. Bergan, P. J., Gibson, Herlihy and Taylor, JJ., concur.  