
    The People of the State of New York ex rel. William Sturtevant, Appellant, v. Christopher Armstrong and Others, as Justices of the Peace of the Town of North Hudson, in the County of Essex, and State of New York, and John R. Carson, Town Clerk of Said Town, Respondents.
    Third Department,
    November 20, 1906.
    Election Law — statutory duty of inspectors of town elections to canvass ballots enforced by mandamus — attorney not estopped on appeal by contention on points of law at trial.
    When inspectors of election at a town meeting have failed to perform their statutory duty to count and canvass the ballots and the town clerk lias not entered the result upon his minutes, the inspectors and clerk will be required by mandamus to convene and discharge their statutory duties.
    Although mandamus is asked for to compel the inspectors to declare and the. clerk to enter the result instead of asking a recounting of the ballots, the latter relief is fairly within the prayer of the petition, and the proceeding should not fail because of such mistake.'
    An attorney’s statement of his understanding of the law at trial does not estop him from changing his view upon appeal.
    
      Appeal by the relator, William Sturtevant, from -a final order of the Supreme Court,, made at the Clinton Special Term and entered the office of the clerk of the county of Essex on the 6th day of' April, 1906, dismissing an alternative writ of mandamus theretofore issued in this proceeding.
    The relief sought by this proceeding is a peremptory writ of mandamus to the defendants Armstrong, I)eyo and Harrington, as .inspectors of the town meeting, held in the town of Horth Hudson, Essex county, on the 7th day of MarCh, 1905, to make and sign an original statement of the canvass of the votes thereat showing the result of the election of officers at said town- meeting and requiring, the defendant Carson, as clerk of said meeting, to enter the result in
    his minutes and file the same,in his office. On the trial of the issues raised- by the return - to the alternative writ of mandamus such writ was dismissed; and from' such final order of dismissal the relator has appealed.,
    
      Fred W. Dudley, for the appellant.
    
      Francis A. Smith, for the respondents.
   Chester, J.:

This proceeding is prosecuted - by the relator on the theory that. there had been 'a complete canvass of the votes cast at the town meeting in question and that there, had been a failure on the part of the town -officers presiding at the town meeting' to make and file a .statement of the result thereof. At such -town .meeting the defend-, ant John K. Carson and the relator William Sturtevant were candidates respectively for the office of supervisor. There was no contest for any office except supervisor and town clerk. The defendant Armstrong was chairman of the board of inspectors. After the polls were closed and the ballot box opened it was found that the number of ballots cast was one hundred- and forty-four, which agreed with the poll list. Armstrong unfolded1 ■ the ballots and1 separated them into three piles, in one of which he put those about which he thought there was some question as to their validity; in another, those understood to be .for Carsón, and in a third those understood to be for Sturtevant. It' is claimed by the relator that these piles were counted by the inspectors and found to contain nine defective ballots, sixty-eight for Sturtevant and sixty-seven for Carson, and that such result was announced. But the great weight of the evidence is that while the piles were counted, before any agreement had been reached -by the board as to the number of ballots that should be allowed to either candidate, a' dispute arose as to the validity or invalidity of several of the ballots. One of those regarded as void bore the printed name of John B. Carson for ' supervisor and also his name in pencil in the blank voting space," with a cross mark in the circle at the head of the official ballot containing his printed name and a cross mark in the voting space at the left of his penciled name. Another was a torn ballot placed by the Inspector Armstrong in the Sturtevant pile. At least four, other ballots in such pile and included in the sixty-eight above mentioned were for “ Sturdy ” with different Christian names or initials.

The court has found as facts that there was no count or determination by the said board as such as to the number of ballots for John B. Carson or William Sturtevant, respectively; ” that there was no count or canvass of the vote for supfervisor, for town clerk or for any other candidates for any other town office, and that no entry of the count or canvass was made.. The court has further found that the inspectors left the count for supervisor entirely undetermined, and that pursuant to. the vote of the inspectors “ all the questions in relation to the said count as to the torn ballot, the penciled ballot and the ballots for one Sturdy ’ and the number of ballots that should be reckoned for the respective candidates for supervisor were left to the final determination of the county judge; * * * that the inspectors in good faith and in the sincere belief that the said county judge could determine finally the said questions in relation to the said count, submitted said questions to him; that he declined to determine the same on the ground of want of jurisdiction ; * * * that no return was made and no certificate filed as to any action or result of said town meeting.” It appears that all of these findings have ample support in the evidence. All the ballots voted at said town meeting were by an agreement of the inspectors put in a box and sealed up and left in the custody of the chairman of the board, where they have ever since remained under such seal. The trial court held that it had no jurisdiction to order a recount of the ballots contained in such box for either of the candidates for supervisor, town clerk Or for. any other town. office and dismissed the writ.

According’to the findings and the evidence the inspectors have neither counted nor canvassed the ballots, nor has any result been entered in his minutes bv the town clerk.

It was the duty of the inspectors under the law -as soon as the polls were closed to canvass the votes publicly at the place' where the town meeting was held, and it was the duty of- the clerk to read the result of the canvass to the persons there assembled and to enter the result at length in the minutes of the proceedings of the meeting kept by him. (Town-Law [Laws of 1890, chap. 569], § 37 [former §■ 39],. as renumbered by Laws}, of 1897, chai). 481,' and ariid. by Laws of 1899, chap. 168.) Instead of performing these duties imposed upon them by law, they adjourned for the purpose of referring tl\e disputed matters to the county judge, and three days later called upon him for that purpose and he declined to interfere as liediad no jurisdiction. .

The case seems to fall within the principle of People ex rel. Smith v. Schiellein (95 N. Y. 124) where Chief Judge Huger in writing the opinion says : “ It appeared Upon the occasion in question that they (the inspectors) met .at the time and place appointed)but entirely neglected to canvass the votes, for the office of justices of the peace. In this, w.e think, they omitted a duty which was imperatively enjoined upon them by the.statute, and to the benefit of the performance of which the relator -was clearly entitled. * * * ' There is no reason why they should not be required to return and complete the duty with which they are charged. It would be a reproach to the laws to hold that an election to office by the people could be defeated by the neglect or refusal of the ■canvassers, to perform the official, duty of canvassing votes cast at an election. It is one of the peculiar functions of the writ of mandamus .to meet and remedy the evils which would result from such a neglect of official duty.”

There is nothing in the subsequent cases of People ex rel. Brink v. Way (179 N. Y. 174) or Matter of Hearst v., Woelper (183. id. 274) which in any wise impairs the .authority of the Smith case.

In each of thfes.e subsequent cases there had been a completed canvass and a result certified which, it was .Sought to change by a recount, wliile in the Smith case as well as in the oüe we are considering there had been no count, canvass or declared result.

It is not questioned here that the ballots are intact and in the same condition as when they were sealed in the box on the night of the. election.

Ho reason is apparent, therefore, why the inspectors and clerk should not be required to convene and open the box and discharge the duties imposed upon them by law.

We are also of the opinion that the statement of the appellant’s counsel on the trial as to his understanding of the law is not effective as an estoppel to prevent him from here urging that the law is not in harmony with that understanding. (Chatfield v. Simonson, 92 N. Y. 209, 218.)

There is also a question as to the form of the mandamus asked for, which is one to compel the iuspectors to declare and the clerk to enter the result instead of one directing the inspectors to count the ballots. They having failed to count, and. such count being a necessary preliminary- to a declaration of the result-, such relief is fairly within the prayer of the petition, and the proceeding should not fail because the petitioner has mistaken to some extent the relief to which he is entitled. (People ex rel. Keene v. Supervisors, 142 N. Y. 271.)

The final order should be reversed, with costs, and upon the facts found by the trial court a peremptory writ of mandamus granted,with costs, directed to the defendant inspectors to convene at a time stated and open the box and canvass the votes therein and to the defendant clerk to enter the result at length in his minutes and file the same in his office.

All concurred.

Final order reversed, with costs, and peremptory writ of mandamus granted, with costs, directed to the defendants inspectors to forthwith convene at the office of the town clerk and open the ballot box and canvass the vote therein, and to the defendant clerk to enter the result at length in his minutes and file the same in his office.  