
    The People ex rel. George H. Bush v. Henry B. McKenzie et al.
      
       The People ex rel. George H. Bush v. Robert H. Fairbrother et al. The People ex rel. George H. Bush v. The Board of County Canvassers of Ulster County.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1892.)
    
    1. Elections—Marked ballots—Mandamus.
    It is only where an inspector of election or other election officer or duly authorized watcher has, during or immediately after the completion of the canvass, declared his belief that certain ballots were marked for identification, that a peremptory mandamus can be granted to compel the attaching of such ballots to the certificate or statement of the canvass.
    2. Mandamus—Alternative.
    Where the relator does not ask for an alternative mandamus, but proceeds with his argument on the opposing affidavits, he cannot afterwardscomplain that the court did not award an alternative mandamus.
    
    Appeal from order denying applications for mandamus.
    
    It was claimed that certain ballots cast in the town of Esopus, Ulster county, at the general election of 1892, were marked for identification, and the mandamus was asked to compel their attachment to the statement of canvass of votes.
    
      Linson. & Van Buren (J. Newton Fiero, of counsel), for relator; John J. Cloonan, for board of canvassers; G. D. B. Hasbrouck, Charles F.. Cantine and Severyn B. Sharpe, for def’ts.
    
      
       Affirming 48 St. Rep., 791.
    
   Putnam, J.

The order should be affirmed on the opinion of the court below.

The relator was not entitled to alternative writ of mandamus, People ex rel. Hartford Ins. Co. v. Fairman, 91 N. Y., 387.

Order affirmed, with ten dollars costs and printing.

Mayham, P. J.

concur with the conclusion of the learned judge at special term, that a peremptory writ of mandamus should not issue in these cases, because it does not affirmatively appear that “An inspector of election or other election officer, or duly authorized watcher, during the canvassing of the votes, or immediately after the completion thereof, declared his belief that the ballots objected to on this motion were marked for the purpose of identification,” required by § 31 of chapter 262 of the Laws of 1890, as amended by chapter 296 of the Laws of 1891.

It is only when such objection is made that this summary pro- ' eeedmg can be adopted. But the failure to make such objection and thus lay the foundation for this summary proceeding does not render a ballot marked for identification a valid vote, but the statute makes such ballot absolutely void, and no neglect on the part of the inspectors or watchers should be permitted to give validity to a vote denounced by the law as void.

In this case it is positively asserted that these ballots were marked, but the respondent disputes their validity and denies posititively that they were objected to at the time of the canvass.

Here is a sufficient dispute as to the facts to authorize the issuance of an alternative mandamus, if a motion for an alternative writ had been made.

In the People v. Board of Canvassers of Dutchess Co., Earl, J., says: “A candidate intending to proceed by mandamus under § 31 should procure an alternative writ, so that if there should be any dispute about the facts, that can be settled before the peremptory mandamus issue.”

I think in this case an alternative writ, if applied for, should have issued so that the facts in dispute, to wit, whether objection was made, or if not made, whether the marked ballots were voted, and if voted, whether they were marked for the purpose of identification, could be settled.

But the relator in this case cannot have that relief on this motion, as their argument of the questions involved on the conflicting affidavits is in the nature of a demurrer to the legal sufficiency of the opposing proof, People ex rel. Hartford Ins. Co., 91 N. Y., 387, and when that is done the alternative writ will not issue.

Order affirmed, with ten dollars costs.

Herrick, J., not acting.  