
    The People of the State of New York ex rel. Matthaus Bantel, Respondent, v. Charles H. Morgan and Others, Appellants, Impleaded with Frederick A. Mehrer and Others, Defendants.
    
      Election Law of 1896—imperfect cross X mark—cross X mark to the left.of a blank space not filled in with a name — when an alternative writ of mandamus need not issue.
    
    
      A ballot cannot be. counted, under the Election Law (Chap. 909, Laws of 1896), where the elector has not placed a cross X mark in the voting space at the left of the name of a candidate, but has placed,'in the column which is provided for the use of electors who wish to' vote' for persons not formally nominated, a cross X mark in the voting space-at the left of the blank headed “Por Trustee,” no name being written under the latter words.
    
      A ballot should be counted where the cross X mark.placed in the circle at the head of a party ticket is not perfect and is something more than a cross X mark, as such a ballot comes within the provisions of section 114 of the act.
    There is no occasion to issue an alternative writ of mandamus, where, after the proof is all in, it appears that there is no material dispute of fact, and that the right of the applicant, if he has any, depends merely upon the decision of questions of law.
    Appeal by the defendants, Charles H. Morgan and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the otli day of May, 1897, directing the issuance of a peremptory writ of mandamus commanding the defendant inspectors to count for the relator certain votes for the office of .trustee of the village of New Rochelle on two ballots which were voted at the village election held therein on the 20th day of April, 1897.
    
      Roger M. Sherman, for the appellants.
    
      Michael J. Tierney, for the respondent.
   Willard Bartlett, J.:

This is a proceeding under section 114 of the Election Law (as amended by chap. 909, Laws of 1896), to determine “ whether any ballot and the v.otes thereon, which has been rejected by the inspectors as void, -shall be counted.” The ballots in question were two in number, which appear to have been duly delivered to the inspectors, by persons entitled to vote at the village election' held in New Rochelle, on April 20, 1897. One of these ballots was not counted at all, but was treated as void, because the mark within the circle, at the head of the Democratic ticket, was something more than merely a cross. The votes upon the other ballot, for three of the four offices to be tilled, were counted, but it was treated as blank so far as the office of trustee was concerned. In respect to the three other offices, it was properly marked by a cross at the left of the names of the respective candidates for those offices which appeared in the Republican column. The Republican candidate for trustee was Charles H. Morgan, who intervenes in this proceeding. The Democratic candidate was Matthaus Bantel, the relator. No cross appeared in the proper place at the left of either of their names. But in the column upon the- blanket ballot, which is provided for the use of such electors as desire to vote for persons not formally nominated, and whose names are not printed thereon, a cross had been placed by the voter in the space at the left of the blank headed “ For Trustee.” No name, however, had been written under these words, and, therefore, the inspectors evidently deemed the mark a nullity. It had no meaning with reference to the column of blank spaces in which it appeared, and, if it was intended to be a vote for the relator, whose name was in the next column, the mark should have, been in that column, and at the left of the relator’s name. The statute provides that the voter “ shall make a cross X mark in the voting space before the name of each candidate for whom he desires to vote, on whatever ticket he may be.” (Election Law;, § 105, as amended by Laws of 1896, chap. 909.) This mark was placed after the name of Mr. Bantel, and in a different and wholly distinct column.

Upon the return of the order to show cause why the relator should not have a peremptory writ of mandamus to compel the counting of these two ballots, Charles- H. Morgan, the opposing candidate for the office of village trustee, was very properly allowed to intervene, and the court compelled the production of the ballot boxes and took the oral evidence of one of the inspectors as to what had been their action in respect to the two ballots in controversy. After the proof was all in, it appeared that there was no material dispute of fact, and the ease, as.it finally came before the. learned judge at Special Term for decision, was one where the' applicant’s right to the mandamus, if it existed at all, depended ■only upon questions of law, and hence it was not necessary that an .alternative writ should first issue. . (Code Civ. Proc. § 2070.) ■

The case of the ballot which the inspectors refused to count because the cross mark in the circle, at the head of the Democratic ticket, was not as perfect as it might have been, came directly within the provisions of section lié of the Election Law, as .amended 'in 1896. It was a ballot which, to all intents and purposes, had been rejected as void. I think that upon its face it was a good ballot, and that it was the duty of the inspectors, as matter •of law, to count it. The determination of the court below as to this ballot was clearly right, and the order, to that extent, should be affirmed.

I am unable, however, to take the view of the other ballot which was adopted at the Special .Term. ' That ballot, as the inspector expressly testified, was counted for the offices of president of the village, treasurer of the village, and trustee at large. It was merely treated as a blank so far as it related to the .fourth office of trustee, for which Mr. Bantel and Mr. Morgan were rival candidates. . Assuming that this fact authorized the court to institute the investigation provided for by section 114, in order to determine whether there appeared upon the ballot any vote for trustee which should be counted, I think the mere inspection of the ballot itself answers ' that question in the negative. The voter marked the ballot so as to manifest his choice effectively for president and treasurer and trustee at large of the village; but, whatever may have been his intent in respect to the trusteeship for which Mr. Bantel and Mr. .Morgan were rival candidates, that intent- is not disclosed in the • slightest degree by the mark which he placed- in the voting‘space .in the column of blanks. There is just as much reason to infer that . lie meant to vote for some one whose name he inadvertently omit- . ted to'write in the place provided for that purpose, as there is to infer that he meant to vote for Mr. Bantel,. simply because the name. - of that candidate was-in the next column, not far off. Tó make ;. that mark effectual as a vote would, in my opinion, be to. make the result of an election turn upon judicial guess work pure and simple.

The order should be affirmed so far as it applies to the ballot marked Relator’s Exhibit B, and reversed so far as it applies to the ballot marked Relator’s Exhibit A, without costs of this appeal to ■either party..

All concurred.

Order affirmed, so far as it applies to the ballot marked Relator’s Exhibit B, and reversed so- far as it applies to the ballot marked Relator’s Exhibit A, without costs of this appeal to either party.  