
    (October 22, 1938.)
    In the Matter of the Application of Chris J. Flanagan, Respondent, to Review the Nomination of Harry H. Flemming, Appellant, as Candidate of the American Labor Party for the Office of Surrogate of Ulster County, N. Y.
   Appeal from an order of the Supreme Court, made by the Ulster Special Term and entered in the Ulster county clerk’s office on October 18, 1938, under article 14, section 330 et seq., of the Election Law. Chris J. Flanagan and Harry H. Flemming were rival candidates for the nomination for the office of surrogate by the American Labor party. Flanagan had been designated by petition and his name was printed upon the ballot. Flemming was supported by voters who wrote his name. On the official returns for the county Flemming received eighteen votes and Flanagan seventeen. The county commissioners of election, as the board of elections, have issued a certificate showing the nomination of Flemming. This certificate is challenged in the petition upon which the proceeding is founded upon the grounds “ that at least in one instance a ballot counted in favor of said Harry H. Flemming was rendered null and void by reason of the fact that the same was written out by one of the inspectors of election.” John Davide was the only enrolled member of the American Labor party in the third election district of the town of Ulster. The Special Term has rejected the ballot east in that district upon the ground that Davide was not entitled to assistance in voting. There were irregularities in connection with the assistance given to the voter; but it is unquestioned that the ballot, as east, correctly represented the intention of tire voter; in the absence of fraud or clear violation this should be given great weight. The voter should not be penalized because the election inspectors were delinquent in the performance of their duties. Order reversed, on the law and facts, and petition dismissed, without costs. The certificate of nomination is reinstated. Hill, P. J., Rhodes, Crapser, Bliss and Heflernan, JJ., concur. [169 Mise. 646.]  