
    Matter of the Application of Warren B. Holmes, a Candidate Voted for at the General Election, held in the Town of Coeymans, in the County of Albany, on the 7th day of November, 1899.
    (Supreme Court, Albany Special Term,
    December, 1899.) .
    1. Election law — Marked ballots.
    A ballot is void if there is any mark upon it other than the cross X mark made for the purpose of voting, e. g., a cross X mark made in the circle at the head of the ticket of a political party for none of whose candidates did the voter make cross X marks in the voting spaces.
    
      3. Same — Construction of ballot.
    Where there are Bepublican, Democratic.and Socialist-Labor tickets at a town election, and the latter party has no candidate for supervisor, a ballot containing cross X marks in the circle at the head of both the Democratic and Socialist-Labor tickets, and a similar mark in the voting space before the name of the Democratic candidate for supervisor, must be counted for him.
    8. Same — Blur on ballot.
    A blur upon a ballot, apparently caused by a wet or dirty finger, is not to be regarded as an erasure, made or attempted.
    Application under the Election Law to determine the validity of certain ballots cast at a town election.
    James J. Barren, for Warren B. Holmes.
    Thompson & Andrews, for Leonard A. Carhart.
   Betts, J.

Two ballots are submitted to me for my determination as to whether these ballots should be counted for Leonard A. Carhart or Warren B. Holmes, Republican and Democratic candidates, respectively, for the office of supervisor in the town of Coeymans, Albany county, or for neither.

Both of these ballots have been rejected by the inspectors of election as void and not counted for either candidate.

In Exhibit “A” the elector -had made a cross X mark in each circle at the head of the Republican, Democratic and Socialist-Labor ticket. He had also made cross X marks in the voting spaces before the names of various candidates on both the Democratic and Republican tickets. By making a cross X mark in the voting space before the name of Warren B. Holmes, the Democratic candidate for supervisor, the elector plainly manifested his intention of voting for him as supervisor. Was that intention frustrated by making a cross X mark in the circle at the head of the Socialist-Labor ticket for no apparent reason ? I think it was and that the ticket was void and was correctly treated as void by the inspectors.

I can discern no reason for the elector making this cross X mark in the circle at the head of the Socialist-Labor ticket nor has my attention been called to any reason that he might have for making such mark for the purpose of voting.

Section 110, subdivision 2, rule 9 of the Election Law provides: “A void ballot is a ballot upon which there shall be found any mark other than the cross X mark made for the purpose of voting, which voting mark must be made with a pencil having black lead * * * and upon such ballot no vote for any candidate thereon shall be counted.”

The action of the inspectors in declaring this ticket void ia approved.

In Exhibit “ B ” the elector had made a cross X mark in the circle at the head of the Democratic ticket and also a cross X mark in the circle at the head of the Independent Municipal ticket and this ballot had been thrown out as void and not counted by the inspectors. The elector had also made a cross X mark in the voting space in front of the name of the candidate for county treasurer upon the Independent Municipal ticket and had also made a cross X mark in the voting space in front of the name of the candidate for school commissioner upon the Republican ticket and made no other mark upon the ticket.

The clear intention from the ballot is that the elector intended to vote for Lewis V. Thayer, Independent Municipal candidate for county treasurer; George A. Conklin, Republican candidate for school commissioner, and the remainder of the Democratic ticket, including Warren B. Holmes for supervisor.

Section 110, subdivision 2, rule 6, is as follows: “If the elector shall have made a voting mark in more than one circle at the head of the party tickets and if on either of such tickets there shall be one or more candidates for office for which no other candidate or candidates is or are named on such other ticket or tickets so marked in the circle his vote shall be counted for such candidate or candidates.”

There is no candidate for supervisor on the Independent Municipal ticket.

If no other question were submitted in the matter this ticket would be counted for Holmes.

On behalf of Mr. Oarhart, however, it is contended that in the circle at the head of the Independent Municipal ticket there is a blurred or dirty appearance upon or near the cross X mark which it is claimed is an erasure, and that under section 110, subdivision 2, rule 9, the ticket is void for that reason.

I do not regard this as an erasure made or attempted. It impresses this court as having been a dirty thumb or finger■ mark made by the elector in some manner, perhaps by wetting his lead pencil while making this cross X mark. Of course no reason is shown for the,elector making this cross X mark at all in the circle at the head of the Independent Municipal ticket for the purpose of voting. These rules, however, must be taken together, and such a construction given to them as to effectuate rather than defeat the clear intention of the voter. The question only is before this court as to the vote on supervisor. Construing rule 9 in connection with rule 6 this vote for supervisor should be counted for Warren B. Holmes, the Democrátic candidate.

Ordered accordingly.  