
    In the Matter of the Application of Lathrop Brown; Petitioner, Appellant, Respondent, for a Writ of Mandamus Requiring the Following Persons, Composing the Board of County Canvassers of the County of Queens, to Wit, Alexander Dugat and Others, to Recount the Votes of the Void Ballots in Certain Election Districts of the County of Queens. Frederick C. Hicks, Intervenor, Respondent, Appellant.
    Second Department,
    November 19, 1915.
    Elections — recanvass of “void and protested” ballots—evidence — return inconsistent with indorsements upon ballots — appeal — writing name of candidate in blank space where it is also printed — cross mark before all candidates for certain office — semi-circular mark over cross — two crosses in same voting space-—irregular cross.
    Proceeding under section 381 of the Election Law to secure a recanvass of the ‘' void and protested ” ballots contained in the sealed envelopes and cast at the general election of a representative in Congress. Evidence examined, and Tield, that the order of the Special Term should be modified.
    Where the written return of election officers giving the number of void ballots is inconsistent with the indorsements upon the ballots themselves, the particular indorsements should prevail over the written return.
    Where the notice of appeal includes a certain ballot as one of those in reference to which the petitioner questions the decision at Special Term but his counsel fails to question the decision in his brief, the appellate court will not consider such ballot.
    A ballot which has the name of a candidate written in the blank line, although it was printed as a candidate for the same office, is void.
    A ballot on which the voter has marked a cross in the proper space in front of each of the candidates for a certain office is blank as to such office.
    A ballot having a semi-circular mark over the cross, but not a part . thereof, is void.
    A ballot having two crosses in the same voting space, or one cross with an attempted erasure of the other, is void.
    Flourishes at the upper end of both lines of the cross not constituting distinct lines, but made with the same impression of the pencil, constitute an irregular cross, and do not render the ballot void.
    Separate appeals by the petitioner, Lathrop Brown, and by the intervenor, Frederick 0. Hicks, from parts of a final order of the .Supreme Court, made at the Kings County Special Term and dated September 30, 1915.
    
      Percy L. Housel [Bertram Gardner with him on the brief], for the petitioner.
    
      Leander B. Faber, for the intervenor.
   Mills, J.:

These are appeals taken, one by the petitioner, Brown, and one by the intervenor, Hicks, from a final order made at the Kings County Special Term, September 30, 1915, in a proceeding brought under section 381 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1913, chap. 821], to secure a recanvass of the “void and protested” ballots contained in the sealed envelopes and cast at the general election of a Representative in Congress, held November 3, 1914, in the first congressional district of this State. The said envelopes were duly produced in court and opened and the general ballots therein there marked respectively “Exhibit 1,” “Exhibit 2,” etc., and the court at Special Term by said final Order passed upon said ballots so far as the same may affect the election of Representative in Congress in said district.

The petitioner, Brown, was the candidate of the Democratic party, and the intervenor, Hicks, that of the Republican. The said Brown here appeals from so much of said order as passed upon ballots marked respectively as Exhibits 2, 7, 26, 28, 38, 39 and 48, and the said Hicks has appealed from so much thereof as passed upon ballots marked Exhibits 37, 39 and 40. It is, therefore, necessary that this court review the decision of the Special Term as to nine separate ballots, namely, Exhibits 2, 7, 26, 28, 37, 38, 39, 40 and 48.

As to the ballot marked Exhibit 2 both parties here agree that the court at Special Term properly held it void; but the petitioner claims that the court there erred in deciding that the ballot had been counted by the inspectors for him and in directing that it be deducted from his count. He contends that there is no proof that the inspectors counted the ballot as a vote for him.

The official statement of the canvass of that election district states, as to the office of Representative, as follows: Ballots voted, 297; Brown, 190; Hicks, 68; Post, 10; Sinclair, 4; blank votes, 24; void, 1; also that the number of blank, void and protested ballots was 25.

From this return it would seem that all the votes not blank were counted for some one save the one returned as void; also that there were four ballots “ protested as marked for identification,” all of which were counted for the several candidates named thereon, and that both those four ballots and the one held void and counted for no candidate were ‘‘ in the sealed package returned herewith.” The sealed package or envelope, however, proved to be marked as containing only four ballots marked “protested as marked for identification,” and upon being opened it was found to contain only four ballots, each one marked in blue pencil “ marked for identification.”

The counsel for the petitioner states in his brief that such marks were made by the justice at Special Term; whereas the counsel for the intervenor in his brief says that they were not made by the justice, and as evidence thereof refers to the fact that they do not bear his initials, and that the record shows that when the envelope was opened the justice remarked: “There are four ballots in the envelopes, endorsed, ‘Marked for identification. ’ ” However the truth may be in regard to this disputed matter, it is plain that no one of the four ballots was marked void by the inspectors, and that the inspectors upon the outside of the sealed envelope filled in only the blank in the line designated “protested as marked for identification ” and not the blank in the line designated “ void ballots.” From these facts I think that the fair inference is that somehow or other the ballot which they treated as void was not placed by them in the sealed envelope. I conclude, therefore, that tne learned justice at Special Term decided correctly that this ballot, Exhibit No. 2, had been counted for the petitioner, and in deciding that it must be deducted from the petitioner’s total.

As to the ballot marked “Exhibit No. 7,” which the Special Term held valid as a vote for the intervenor Hicks, and, therefore, added one vote to his count, although the petitioner’s notice of appeal includes that ballot as one of those in reference to which he questions the decision at Special Term, I do not find that his counsel in his brief makes any contention that such decision was erroneous, and, therefore, I do not further consider that ballot.

As to ballot “Exhibit No. 38,” next discussed in the brief of petitioner’s counsel, it had the name of the petitioner written in the blank line, although his name was printed as a candidate for the same office, namely, Representative, upon the ballot. The court at Special Term held that the ballot so marked was void, at least as to the office of Representative. Petitioner’s counsel claims here that the provisions of rule No. 9 of section 368 of the Election Law (as amd. by Laws of 1911, chap. 649), expressly declaring void a ballot upon which the name of, a person, printed upon the ballot, has been written by the voter, is not expressly continued in the present amended law, section 358 (as amd. by Laws of 1913, chap. 821). I think, however, that the effect of the present provision, viz., subdivision 4 of section 358 (as amd. by Laws of 1913, chap. 821), viz., “To vote for any candidate not on the ballot, he shall write the candidate’s name on a line "left blank in the appropriate place,” has the same effect; that, in other words, the elector who so wrote relator’s name in the blank line on ballot No. 38 did not vote for him in the authorized way, that is, as provided by subdivision 2 of said section 358 (as amd. by Laws of 1913, chap. 821). Hence I conclude that the court at Special Term properly disposed of said ballot, Exhibit No. 38.

As to ballot “Exhibit No. 26,” the petitioner here contends that it should not by the final order have been added to the intervenor’s total, because “ it is quite as probable that it has already been counted [by the inspectors] for him as that it has not;” while the counsel for the intervenor seems to concede that it should not have been so added, as it had already been counted for the intervenor; but he couples his concession with the claim that it should be held also that ballot Exhibit No. 28 was counted by the inspectors as a valid vote for the petitioner, and, therefore, he contends that such vote, the ballot having properly been held to be void, should at Special Term have been deducted from the petitioner’s count. As this concession cannot well be accepted, except upon such condition, the petitioner’s counsel cannot be regarded as having accepted it; and this court must pass upon his contention that ballot 26 should not have been added to the intervenor’s total.

It appears that ballots Exhibits 26„ 21, 28 and 29 were found in the same sealed envelope; that the inspectors’ return from that election district shows that for the office of Representative there were: “Blank ballots, 85; void, 1. Total, blank, void and protested, 36.”

The sealed envelope was indorsed merely, “Eight void ballots.” It contained four Constitutional Convention delegate ballots and four general official ballots, each without any indorsement upon it by the inspectors. From the return it would appear that they held only one of the ballots void as to that office, but that they did hold thirty-five ballots blank as to the same. It is plain that ballot No. 26 was a valid vote for the intervenor, as the Special Term held. Its only defect was that the voter marked his cross in the proper voting spaces in front of each of five candidates for the office of State Treasurer, which, under section 358 of the Election Law (as amd. by Laws of 1913, chap. 821), made the ballot a blank vote for such office. Exhibit No. 21 was an absolute blank for the office of Representative. Exhibit No. 28 had a semi-circular mark put over the left part or side of the cross in the voting space in front of petitioner’s name and should be held void, as the Special Term decided. The counsel for the petitioner, however, claims that the court should have held that ballot valid within the provision of section 358 (as amd. by Laws of 1913, chap. 821), viz., “ but no ballot shall be declared void because a cross X mark thereon is irregular in character.” I do not think that this contention is well made, as the semi-circular mark seems to be imposed over the cross and not to be a part thereof. In this view of the matter, that ballot might properly have been regarded by the inspectors as wholly void under section 358 (as amd. by Laws of 1913, chap. 821), viz.: “ Any mark other than a cross X mark or any erasure of any kind shall make the whole ballot void.”

Ballot “ Exhibit No. 29 ” had a cross in the voting space in front of each of five different candidates for the office of Representative, and, therefore, has to he held blank for that office, as ballot Exhibit No. 26 had to be held blank for the office of State Treasurer. It seems to me, therefore, that of the four ballots found in the sealed envelope only one of them, viz., Exhibit No. 28, was properly to be held as a void ballot; that one of them, viz., Exhibit No. 26, was to be held valid as to the office of Representative, and the other two to be held blank as to the same.

I conclude, therefore, that the decision of the Special Term was correct in substance, although the verbal distinction between “void” and “blank” was not there made; and that the final order correctly added the vote upon ballot No. 26 to intervenor’s total, but made no change as to the other three, as no one of them had been counted by the inspectors.

As to ballot Exhibit No. 39, the court below held that it was void on account of the third mark in the cross in one of the Comptroller’s voting spaces; at least, both counsel in their briefs declare that such was the ground of the decision at Special Term. From my inspection of the ballot it seems to me quite as likely that the voter, in making the heavy transverse fine or smear, was attempting to erase the cross which he had at first made in front of Travis’ name, and later made a cross in front of Sohmer’s name. This seems likely from the fact that he voted otherwise the Democratic ticket. Such erasure, under section 358 (as amd. by Laws of 1913, chap. 821), would make the ballot equally void. If the ballot be not void by reason of such mark, it is a valid vote for the petitioner. The Special Term refused to* count it for him or to deduct it from his count, as that court held that it had been regarded by the inspectors as void. The petitioner here contends that the three marks contained in such voting space should be regarded as constituting merely an irregular cross and so as saved by the provision of section 358 (as amd. by Laws of 1913, chap. 821), above quoted.

In the recent case of Matter of Garvin (168 App. Div. 218, 222) the First Department held that excessive crosses in a voting space make the ballot void, and it seems to me that that is .just the situation here — that is, that there are two crosses in such Travis voting space, or at least that there is an attempted erasure of the cross made therein. Therefore, I conclude that the decision holding ballot No. 39 void was correct. The court at Special Term refused to deduct it from the petitioner’s total, holding that it had not been counted for him by the inspectors; and the intervenor here contends that it should be so deducted as having been so counted by the inspectors. The ballot was marked “void” in ink by the inspectors; and I think, therefore, that the presumption is that they so treated it and did not count it. The counsel for the intervenor contends that, as the return shows only two void ballots for Representative, and the envelope, being indorsed “five void ballots,” contained five general ballots, -viz., Exhibits 37, 38, 39, 40 and 41, all of which, except Exhibit No. 38, had, by the inspectors, been marked “void,” the inference should be that of the four so marked “void,” only two were so treated by the inspectors and not counted by them; that, as Exhibit No. 41 was an entire blank as to this office, only two of the other three could have been rejected and not counted by the" inspectors; and that, therefore, one more should have been deducted from his count at Special Term, as, all three being apparently votes for him, are really invalid as such, namely, Exhibit No. 37 has one straight line in the Comptroller’s voting space and is, therefore, clearly void; Exhibit No. 39 has the two crosses in the same voting space, or the erased cross as above stated, and, therefore, is void, and Exhibit No. 40 has a cross in the G-overnor’s named space and is, therefore, clearly void. Hence the intervenor contends that the inspectors must have counted at least one of the four ballots, namely, Exhibits 37, 39, 40 and 41, three of which, 37, 39 and 40 were void, No. 41 being blank; and, therefore, that one of the three should be déducted from petitioner’s total; and that ballot No. 39 should be so deducted as presenting the only possible debatable question of validity. This argument is ingenious, but does not convince my mind, though possibly it may be correct. Each of those three ballots was marked “ void ” by the inspectors. They had in mind the term “ protested,” and marked it upon ballot No. 38. I, therefore, think that they were sensible of the respective meaning of. the two terms “ void ” and “ protested. ” The burden no doubt rests upon the intervener to satisfy the court that ballot No. 39 was actually counted for the petitioner by the inspectors. I do not think that we can hold that he has met that burden, although the matter is not entirely clear, and, therefore, I think that we should uphold the decision at Special Term in refusing to deduct ballot No. 39 from the petitioner’s total.

At the most it is a case here where the general, the written, return, in giving two as the number of void ballots, was inconsistent with the indorsements upon the ballots themselves, which made four void, one of which plainly was merely blank. It seems to me that, if anything, the particular indorsement should prevail as a special return over the general return.

As to ballot No. 48, which was held void below, the defect is that there appears at the upper end of the line of the cross, which tends to the right, a sort of a little curve, made apparently in closing that line, as though the pencil had flourished a bit, and also there is something similar, but not so marked, at the top -of the-other line of the cross. It seems to me that neither is a distinct line, but that each was made with the same impression of the pencil, and that, therefore, the entire thing should be considered simply as an irregular cross and' a valid voting mark; and that the order appealed from should be modified accordingly, so as to give that vote to the petitioner. This ballot seems to me to present a far different case from that of either of the ballots, Exhibits 28 and 39, above considered.

I advise, therefore, that the order appealed from be modified so as to provide that the ballot marked “Exhibit No. 48” was and is a valid ballot and vote for the petitioner, and, therefore, by reason of such ballot, that one vote be added to the total number of votes heretofore counted for said petitioner, Brown, by the inspectors; and that, as so modified, said order be affirmed, without costs to either party.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.

Final order modified in accordance with opinion, and as so modified affirmed, without costs to either party.  