
    The People of the State of New York ex rel. Walter Henness, Appellant, v. J. Harper Douglass and Others, as Inspectors of Election of the First Election District of the Town of Kortright, Delaware County, New York, Respondents. Charles H. Tupper, Petitioner.
    Third Department,
    March 23, 1911.
    Intoxicating liquors — local option —■ mandamus — holder of certificate not entitled to intervene.
    The holder of a liquor tax certificate will not be allowed to intervene in mandamus proceeding's wherein inspectors of election of a town district have been ordered to file a tally sheet of the votes cast on the submission of the question of the right to sell liquors. This, because the return filed by the inspectors cannot prejudice the holder of such certificate, and the result of the vote-must" be determined in other proceedings.
    
      It seems, that a motion may be made under section 37 of the Liquor Tax Law to cancel a liquor tax certificate upon the ground that the holder is not entitled thereto because the town voted against the sale of liquors, or that, under section 374 of the Election Law, the ballot box may be opened and the result of the election determined in a proper way.
    
      Motion by the petitioner, Charles H. Tapper, for an order permitting him to be heard herein and for an order setting aside the return to the writ of mandamus theretofore granted and the returns tiled by the defendants as inspectors.
    
      C. L. Andrus, for the petitioner.
    
      Hamilton J. Hewitt, for the relator.
    
    
      O' Connor & O' Connor, for the inspectors. .
   Pee Cueiam:

It was the duty of the inspectors to file the tally sheet, and this court properly required them to perform that duty. Their duties as a canvassing board have otherwise ended. The vote of the town and not the statement of the result determines the right to sell liquors. The statement originally made, however, is presumptive evidence of the result of the vote. (People ex rel. Leonard v. Hamilton, 42 App. Div. 212.) There must be some proper way of now determining the result of the vote. Apparently a motion may be made under section 27 of the Liquor Tax Law to cancel the certificate on the ground that the holder is not entitled to it for the reason that the town voted against the sale of liquors. Under section 374 of the Election Law the ballot box may be opened, and it would seem there are ample means of determining in a proper way the result of the election. The petitioner’s application to intervene is denied for the reason that the return as filed cannot prejudice him, as the question as to the result of the vote must be determined otherwise and in another proceeding.

The motion is, therefore, denied.

All concurred, Houghton, J., concurring in result in memorandum, except Betts, J., not voting.

Houghton, J. (concurring in result):

This court ordered the inspectors to make a return, which they have done. They were still in office for the purpose of making a correct return of the votes cast if they had made no return at all or had made a mistaken one. The return, therefore, which they made under the mandamus directed to .be issued by this court is of some effect and force. As against the petitioner it is prima facie evidence of the vote on the liquor tax proposition in controversy. The petitioner’s liquor tax certificate was issued to him on a former return of the inspectors, and that return permitted such a certificate to be issued. When any proceeding shall be taken, if any shall be, to cancel the certificate so issued to him, the second return made under this proceeding will not be conclusively binding on the petitioner, but prima facie evidence only, and it will be competent to show what the actual vote taken on the liquor tax question was. It is not necessary, therefore, that the petitioner should be made a party to the present proceeding, and I concur in the result of denying his motion to intervene.

Motion denied.  