
    In the Matter of the Application of Merrill K. Baker for an Examination of Ballots, Pursuant to the Provisions of Section 333 of the Election Law, in the Town of Knox, Albany County, N. Y. Frederick Posson, as Town Clerk of the Town of Knox, and Others, Appellants; Merrill K. Baker and Another, Respondents.
    Third Department,
    November 19, 1931.
    
      Borden H. Mills, for the appellants.
    
      Francis Bergan, for the respondent Baker.
    
      Walter L. Collins, for the respondent board of elections.
   Per Curiam.

We conclude that sufficient has been shown to justify an examination of the ballots in the town of Knox and the order directing such examination should be affirmed.

We are, however, of the opinion that the custody of the ballot boxes should not have been changed and taken from the officer who, under the statute, is made the rightful custodian. The provisions of section 333 of the Election Law are broad but do not authorize this change of a custodian. The court has full power to direct in what manner this custodian shall protect the inviolability of the boxes and the ballots. So far as the evidence appears, the seals of these boxes have not been broken. If that be the fact, the competency of the ballots as evidence was not destroyed for re-examination. (People ex rel. Dailey v. Livingston, 79 N. Y. 279.)

This conclusion having been reached, the orders of November ninth, November twelfth and November sixteenth, in so far as they impounded the ballot boxes and their contents and changed the custody thereof from the town clerk, in whose custody the statute directed them to be kept, to that of the board of elections, do not necessarily render futile the examination of the ballots. (See Matter of Sweeney, 222 App. Div. 849.)

We determine, therefore, that the town clerk of the town of Knox is entitled to the custody of the ballot boxes, but order that he should remove them fully sealed to a safe deposit vault, there to be retained and only to be taken therefrom, or the seals thereof broken, in the presence of the town clerk and the parties to these proceedings, or their representatives, and in compliance with any further order not in conflict herewith given by a justice of the Supreme Court.

Inasmuch as the justice before whom these proceedings were instituted is out of the district, it should be further ordered that further proceedings be had before Mr. Justice F. Walter Bliss, in Part I of the Supreme Court, in the Albany County Court House, Friday, November twentieth, at two o’clock p. m., or as soon thereafter as the parties can be heard.

All concur.

Final order granted November 16, 1931, in so far as it directs an examination of ballots under section 333 of the Election Law, modified so as to provide that the examination proceed before Mr. Justice Bliss, in accordance with opinion, and as so modified affirmed.

Orders, in so far as they direct the change of custody of the ballot boxes and their contents, modified in accordance with opinion, and as so modified affirmed.  