
    Matter of the Application of Thomas E. Rush, Petitioner, for a Writ of Mandamus, etc.
    (Supreme Court, New York Special Term,
    December, 1903.)
    Primary Election Law—Powers of board of elections of New York city as custodian of primary records — Remedy where void and protested ballots, alleged to be lawful, have not been counted by boards of primary inspectors.
    The board of elections of the city of New York, in that city the custodian of primary records, has merely ministerial power and can only canvass the statements of the result filed with it by the boards of primary inspectors.
    Therefore, it cannot be compelled by the Supreme Court to recount ballots returned by such boards as void and protested and determine whether or not those ballots, alleged to be lawful, were counted and, if not counted, add them to the returns and canvass them.
    
      Semble, that where the ballots, the statements and the boards of primary inspectors are still in existence each board may, on proper papers and affidavits showing that lawful ballots have not been counted by it, be ordered to reconvene and obey the law.
    Void ballots must be rejected; protected ballots are to be so marked but must be counted.
    Application for a writ of mandamus and motion to vacate a stay.
    
      Jacob Marks, for T. E. Rush.
    Herbert H. Maass, for J. F. Mulqueen.
    George L. Rives, Corporation Counsel (Oliver C. Semple, assistant), for Board of Elections.
   Clakke, J.

Application for a writ of mandamus requiring the board of elections, the custodian of primary records, to recount void and protested ballots in the Twenty-ninth Assembly district, which are alleged to have been returned as void, and protested and not counted at the Democratic primary in said district. It is alleged that the statements filed by the boards of primary elections show that fifty-six ballots were returned as void and protested. It appears that in a proceeding already had said ballots have been produced before this court and examined by a justice thereof. Mr. Justice Mac-Lean, on said proceeding, made an order which reads: “And the court having investigated all of said ballots as contained in said packages * * * and having examined the said ballots * "* * finds as matter of fact and law as follows: That the whole number of void, and protested ballots as returned in said packages by the board of elections is fifty-six, which said ballots were marked Exhibits 1 to 56, inclusive. That the said ballots numbered 21 and 28 are void ballots, and if counted should not have been counted, and that the remaining of said exhibits are good ballots, and should have been counted if not counted.” This proceeding seeks to compel the custodian of primary records to determine whether or not said ballots were counted, and if not counted to add them to the returns and canvass them. The board of elections, the custodian of primary records, has no such power, and, therefore, cannot be compelled to exercise it. Its power is ministerial merely. It can only canvass the statements made by the boards of primary inspectors (§8, subd. 4 of the Primary Election Law; People ex rel. Calihan v. Hunt, 75 App. Div. 33). The Primary Election Law (L. 1899, ch. 473) provides in section 7, subdivision 1: “Ho ballot which shall have any printing, writing or mark on the outside thereof, shall he received. Ho ballot shall be in any way marked for identification.” And section 8, subdivision 1, “ Canvass of Votes,” provides: “ All questions touching the validity of ballots or their conformity with the provisions of this act shall be determined by a majority vote of the board of primary inspectors. * * * When a ballot is not void, and a primary election inspector or duly authorized watcher shall, during the canvass of the vote, declare his belief that any particular ballot has been written upon or marked in any way for the purpose of identification the inspectors shall write on the back of such ballot, Objected to because marked for identification,’ and shall specify over their signatures upon the back thereof the mark or markings upon such ballot to which objection is made. The votes upon each such ballot shall be counted by them as if not so objected to. If any ballots shall be rejected as void, the reason for such rejection shall be written on the back thereof by the chairman of the inspectors, or by an inspector designated by him. * * * A statement of the number of ballots protested as marked for identification, and of the .number thereof rejected as void, shall be included in each of the statements of the result of the canvass.” It thus appears that void ballots are to be rejected; protested ballots are to be so marked, but must be counted. In my judgment petitioner has mistaken his remedy. Every board of primary inspectors is a body entirely independent of every other board. What it did in the way of counting or not counting ballots is a question of fact. The board of elections has no power to take evidence or otherwise act than to canvass the statements. I think the court has power under section 11 to review the action of the inspectors. They are regular election officers appointed for a year. They will again act as primary inspectors at the coming spring primaries, 1904 being a presidential election year. Hence, the boards are still in existence. Indeed, this court has .already so decided in the Matter of the Second Election of the Twenty-ninth Assembly District, when Mr. Justice Leventritt, in this very matter, issued an order compelling the inspectors to appear before him and properly perform their duties. I see no difficulty, upon proper papers and sufficient affidavits directed against each board as to which petitioner can allege that lawful ballots have not been counted, to compel them to reconvene and obey the law. The statements are on file. The ballots have been preserved. The new general committee does not organize until late in December. But upon these papers no such order could be made, as there are only vague general allegations as to the whole Assembly District. The proper proceeding should be, as indicated, against the particular boards whose actions ought to be reviewed. Inasmuch as this matter has now been in the courts on several proceedings, and as in the papers reference is made incorporating all of those papers, I have looked into the facts, and find that of the ballots in question all have been counted for the respective parties’ with the exception of twenty-eight. Qf these the ticket headed by Mr. Rush appears to have had fifteen uncounted ballots declared by Mr. Justice MacLean to be good, Mr. Mulqueen nine, and there are four others of which I can find no evidence as to which they were. I omit the two declared bad, as, one having been counted and one not counted, they do not affect the result. Adding all of the four unidentified ballots to Mr. Rush’s column, he would still fail of election by five votes. It should also be pointed out that the Second District is res adjudicata by Mr. Justice Leventritt’s action. So that if the proper proceedings should be taken the result would not be altered, the petitioner would not obtain a certificate of election, and when petitioner could only show an academic interest in a result I doubt whether a court should act. On the motions before me Mr. Rush’s motion for, the issuance of a writ of mandamus to the board of elections is denied. Mr. Mulqueen’s motion to vacate the stay is granted. Mo costs.

Ordered accordingly.  