
    The People ex rel. David A. Munroe, Jr., Resp’t, v. The Board of County Canvassers of Onondaga County, App’lts.
    
      (Court of Appeals,
    
    
      Filed December 29, 1891.)
    
    1. Elections—Errors in return of inspectors—Mandamus.
    Votes were returned by the board of inspectors in certain election districts as having been cast for David A. Munroe, D. A. Munroe and D. A. Munroe, Jr., which were in fact cast for David A. Munroe, Jr., but all the sample ballots attached to the returns were printed David A. Munroe, Jr. Held, that a mandamus could properly issue to the county canvassers requiring them before canvassing the vote to send such returns as contained those errors hack to the hoard of inspectors for correction.
    2. Same.
    But it is error for such mandamus to require the county canvassers, when these errors are corrected, to proceed to canvass the vote as it appears upon the face of the statements, and declare the result, as it appears that some ballots were improperly voted, and should. not he counted.
    (Andrews, Finch and Peckham, JJ., dissenting.)
    Appeal from order of the supreme court, general term, fourth, department, affirming order granting peremptory mandamus requiring the board o£ canvassers to send back returns for correction, and to canvass the returns as corrected.
    
      Louis Marshall, for app’lts; W. P. Goodelle, for respt.
   O’Brien, J.

The order appealed from directed a mandamus to issue upon the petition of the relator to the board of county canvassers of Onondaga county, directing and commanding them to cause certain statements of the vote for member of assembly in the first assembly district of Onondaga county, cast at the general election on the 3d day of November last, to be sent back to the board of inspectors of election in certain election districts, wherein the statement and return made by said inspectors contain errors of a clerical nature that appear and should be corrected before the statements are canvassed by the board of county canvassers. It appears that votes are returned by the board of inspectors as having been cast in various election districts in the assembly district for David A. Munroe, D. A. Munroe and D. A. Munroe, Jr., which wore in fact cast for David A. Munroe, Jr., for member of assembly for the first assembly district of Onondaga county. In every case the sample ballots returned by the various boards of inspectors, and attached to their statement of the result of the vote for member of assembly in these several election districts, show that the ballots were all printed with the name of David A. Munroe, Jr., and in that form deposited in the ballot box, but that by mistake the printed blank statements used by the inspectors in making their return contained the name of the candidate variously spelled and designated as above mentioned. David A. Munroe, Jr., was the republican candidate for member of assembly in the first assembly district, and he claims that the errors in the inspectors’ returns should be sent back to them for correction. We think that upon such a state of facts a mandamus may properly issue to the county canvassers requiring them before canvassing the vote to send such returns as contained those errors back to the board of inspectors for correction. The sample ballots show that these votes, variously returned by a name differing slightly in the spelling and otherwise from that of the relator, were really cast for him, and the correction of such a mistake is fairly within the purview of the statute. Laws of 1812, chap. 130, title 5, § 15. In the case of the People ex rel. Noyes v. The Board of Canvassers, 126 N. Y., 392; 37 St. Rep., 778, we held that the statement of votes cast required by the statute to be written on the sample ballot could not "be used by the county canvassers as the correct statement of the vote cast for any designated candidate, when it contradicted or did not agree with the statement of such vote embodied by the inspectors in the body of their certificate, but that the latter must govern them in canvassing and declaring the vote of the candidate. But that principle does not preclude the inspectors or canvassers, when it is material to ascertain the kind of ballot voted or the correct name of the person voted for, or the correct spelling of the name, from inspecting the sample ballot attached. But the mandamus issued required more to be done than to cause the return containing the clerical errors to be sent back to the inspectors. It also requires the county canvassers, when these errors are corrected, to proceed to canvass the vote as it appears on the face of the statements and declare the result "We have held in the case of the People ex rel. Nichols v. The Board of County Canvassers of Onondaga County, 41 St. Rep., 713, at this term, that certain votes cast in some of the election districts could not be counted. That part of the order directing a mandamus to issue commanding the county canvassers to cause the inspectors’ returns to be sent back to them for the correction of the clerical errors appearing in regard to the name and spelling should be affirmed, but the rest of the order requi- ■ ring the board to canvass should be reversed, and the writ should be modified accordingly.

All concur, except Andrews, Finch and Beckham, JJ., who agree except as to the modification, and as to that they dissent  