
    In the Matter of the Application of Edwin W. Fiske, Respondent, for a Peremptory Writ of Mandamus and in the Matter of the Application of Edward F. Brush, Appellant, for a Peremptory Writ of Mandamus.
    
      Matter of Fiske, 181 App. Div.-.
    
      Matter of Brush, 181 App. Div.-•.
    (Argued. January 28, 1918;
    decided February 5, 1918 )
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory writ of mandamus for the deduction from the total vote credited to Edwin W. Fiske for mayor of two votes, the one known as the “ superintendent of the poor ” vote and the other known as the “ city chamberlain ” vote, and confirmed the original canvass of the McCarthy vote by denying the application of the candidate Brush for a writ of mandamus as to said ballot. Ballot No. 1 may be described as the “ McCarthy ballot.” On that ballot, in addition to the regular voting marks, there are indorsements by the elector, one of them being “ I, Fatrick W. McCarthy, of 7 Short Street, Mt. Vernon, N. Y., vote the straight Democratic ticket.” Ballot No. 2 may be described as the “ superintendent of the poor ballot.” On that ballot, under the words printed in small letters “ Not to be voted. Superintendent of the Boor,” the name of the candidate Edwin W. Fiske was written in. The third ballot, which may be described as the “ city chamberlain ballot,” had the name of the candidate Edwin W. Fiske written in the third column under the title in large printed letters “ city officers ” followed by the words in small printed letters “ City Chamberlain.” It was conceded on the hearing in the court below that there was no election in the county of Westchester for the office of superintendent of the poor at this election, and that there was no such office as city chamberlain in the city of Mount Vernon, and that consequently there was no election for city chamberlain. The Appellate Division reversed the Special Term as to the “ city chamberlain ” and “ superintendent of poor, ballot,” and affirmed it as to the McCarthy ballot.
    
      George H. Taylor, Jr., James H. Cavanaugh and J. Henry Esser for appellant.
    
      Arthur M. Johnson and Sydney A. Syme for respondent.
   Orders reversed in so far as they direct mandamus to issue to canvass and count the McCarthy vote, otherwise the order of the Appellate Division affirmed; no opinion.

Concur: Hiscock, Ch. J., Collin, Cuddeback, Hogan and McLaughlin, JJ. Chase and Crane, JJ., dissent from the affirmance of the order of the Appellate Division directing a mandamus to issue to canvass and count the other ballots involved herein.  