
    The People of the State of New York ex rel. Lathrop Brown, Appellant, Respondent, v. The Board of Supervisors of Nassau County and Others, Defendants. Frederick C. Hicks, Intervenor, Respondent, Appellant.
    Second Department,
    December 3, 1915.
    Elections — form of ballots — count — cross before emblem — ballot “marked for identification” —votes for two candidatesfor same office — ballot marked “spoiled.”
    Where there is no indorsement on a ballot and it is not clear nor apparent whether or not it was originally couqted, it cannot be considered on a recount.
    Where a mark has been made on a ballot opposite the name of a candidate so as to make it void, and it has been indorsed “ marked for identification,” it should not be counted.
    When it is uncertain whether a ballot indorsed “marked for identification ” has been counted, such a ballot, although wholly void because cross marks have been placed before the emblems instead of in the voting spaces, should not be deducted from the count.
    A ballot containing crosses opposite the names of two candidates for the same office is ineffective only as to that office.
    Where a ballot has been indorsed “ spoiled” at the original canvass, the inspectors cannot be compelled by a writ of mandamus to indorse it “wholly void.”
    "Under the evidence, held, that a ballot originally marked “spoiled” should not be added to the vote of a candidate, although valid as to him.
    Cross-appeals by the relator, Lathrop Brown, and the intervenor, Frederick 0. Hicks, from a final order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of November, 1915. .
    
      Percy L. Housel [Bertram, Gardiner with him on the brief], for the relator.
    
      William D. Guthrie [Leander B. Faber and Joseph M. Belford with him on the brief], for the intervenor.
   Per Curiam:

This is one of the proceedings in the county of Nassau, similar in their character to those considered in the county of Suffolk in People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (170 App. Div. 364), decided herewith.

Ballot 250, second district of North Hempstead. The ballot is unobjectionable in form. The intervenor insists that it is one of the void ballots, and should be added to his count. The relator answered that the return showed that there were 10 ballots void for Governor, and that 11 were found in the envelope; that there was nothing to show that this was a void ballot, none of the ballots was indorsed, and ballot 248 is indorsed on the back “7 void.” The intervenor contended that “ it ” (referring to the envelope) contained 11 ballots; that Exhibit ballot 252 is indorsed "10 void ballots,” and Exhibit 248 is indorsed “7 void” ballots, and there was no indorsement on ballot 250. The court ruled that it could not determine under the circumstances that this ballot was one of those that were held to be void, and held that the return was satisfied by the other ballots, and that this was an extra one. The court finally denied the motion for the addition of this ballot to Mr. Hicks’ count. We think that the ruling that denied the motion for addition of the ballot to the intervenor’s vote should be sustained, because it is not clear nor apparent whether or not this ballot was originally counted.

Ballot 255, district No. 5, town of North Hempstead. It was contended by the intervenor that it had been counted for Mr. Brown, and should be deducted from Mr. Brown’s vote. The court granted the motion that it should be deducted from the relator Brown’s count. The ballot shows that it was indorsed “Marked for identification,” apparently by the inspectors on election night, and opposite the name of a candidate for Secretary of State such mark had been made as makes it a void ballot. We think that the ruling of the court was right, and that it should be affirmed, and the vote should be deducted from the relator Brown’s vote.

Ballot 257, election district No. 2, North Hempstead, was offered for deduction from intervenor Hicks’ vote, and the motion was granted. When ballot 257 was offered originally for such deduction, it was said by counsel for the relator that the return and tally sheet in that district were not correct, but that he would not ask for any decision until they had an order against the inspectors, and decision, therefore, was reserved. We cannot find that any writ was ever obtained. The ballot shows that it was indorsed “ Marked for identification,” apparently by the inspectors on election night, and contains a tear or erasure opposite the name of a candidate for Secretary of State. We think that the court made a right ruling and that its determination that the vote should be deducted from the intervenor Hicks’ vote should be sustained.-

Ballots 308 and 310, district 2, Oyster Bay. The intervenor says that these ballots were concededly treated as void by the inspectors of election. The ballot was offered as an addition to the relator Brown’s count, but was objected to on the ground that there was an erasure made by a pencil. The Special Term held that the ballot was valid and granted the motion. We think the ruling of the court was correct and that its decision should be affirmed.

Ballot 310, same district. This was offered for addition to the relator Brown’s vote. We think that the mark in the voting space for the relator does not offend the statute. The ruling that the ballot was valid and should be added to the relator’s vote was right, and the decision is affirmed.

Ballot 318, district 8 of the town of Oyster Bay. This ballot was offered for reduction from the vote of the intervenor Hicks, in that it was void as marked for identification. In the attempted votes for Associate Judge of the Court of Appeals, United States Senator, Representative in Congress and State Senator, a cross was put before the emblem and not in the voting space designated to contain the mark of the voter; and in the votes for Attorney-General and State Engineer the cross was put after the emblem and not in the voting space designated. The intervenor objected, that in that district but one ballot was returned as void, and asked how, then, could it be determined that this is not the void ballot ? It was answered that the return shows no void ballot returned “ all down the line; ” that there is not a void ballot for all of the offices, and that the return showed 1 void for Congress. The argument of the relator is that none of the ballots found in the envelope was indorsed void; that the return showed 3 void for Governor and 1 each for Lieutenant-Governor, Secretary of State, Comptroller and Representative in Congress, and it is thus apparent, the total vote for every office being the same, that the inspectors counted 2 ballots void for Governor only, and good or blank for the other offices, and, therefore, disregarded the rule that a ballot void for one office is void for every office; for if they had obeyed it, the number of void ballots returned would have been the same for all offices. He concludes, therefore, that it is quite as probable as not that the ballot containing the void vote for Congress is in the ballot box as that it is in the envelope, and that the ordinary presumption should apply that a ballot indorsed as Exhibit 318, “marked for identification,” has been counted, and as this ballot is wholly void on account of the marks in the emblem spaces, it should be deducted. The intervenor answers that although the ballot was void, the refusal of the Special Term to deduct the vote from the intervenor was right for the reason that the proof was insufficient to show that it had been counted. The Special Term held that the ballot was void, but declined to permit the ballot to affect the vote for the intervenor Hicks, because the situation made it uncertain for a determination whether the ballot should be deducted or added. We think that the disposition thus made should be affirmed.

Ballot 367, election district 9, town of Hempstead. This ballot was offered for addition to the relator Brown’s vote. His counsel at the time of offer submitted that “the return shows five void ballots right through; the ballot clerk return shows one returned and cancelled by the voter; * * * the spoiled ballot has been accounted for and picked out by the inspector and has testified to more void ballots than he is supported by the return.” The intervenor concedes in his brief that the ballot is valid, but the contention is that there was no evidence to show that it was treated as void by the inspectors. It is 'undisputed that this ballot, when it first came out of the envelope, was indorsed in lead pencil “ Spoiled.” At the hearing held on December 1, 1914, testimony was taken that it was one of the void ballots returned for Congress. Indeed, there was much testimony offered. There was an auxiliary writ of mandamus issued after the decision of the Court of Appeals. In the original petition for an auxiliary writ of mandamus, it was shown that ballots indorsed as spoiled and placed in the envelope were ballots in fact adjudged void, and that the inspectors omitted to indorse the memorandum of their objections. The court issued an auxiliary writ of mandamus, and subsequently issued an order for a writ on the remittitur as settled by the Court of Appeals, whereby it ordered that the inspectors reconvene, “take the envelope of void, protested and wholly blank ballots * * * open the same and upon such of the ballots therein contained as were by them adjudged void or objected to or protested on the canvass thereof at the last general election and upon which indorsement had not been made at the time of the canvass thereof and which the said inspectors of elections are able to identify and can state the grounds upon which the same were adjudged void or objected to or protested on the canvass thereof, to indorse in ink upon the back thereof a memorandum of the objection, if any, made to said ballot or any vote thereon, and the ruling of the inspectors thereon at the time of such canvass, stating whether it was counted void or counted blank, and for which office in either case or counted for any candidates naming them in accordance with their action thereon during the canvass of said ballots,” etc., “and to sign said memorandum if so made at the foot thereof as having been made pursuant to the order of the court; to return said ballots to said envelopes,” and “to take from said envelopes any ballots spoiled and returned by voters and for which new sets of ballots were delivered to such voters which can be identified by said inspectors and to indorse the same can-celled ’ and inclose same in a separate envelope properly indorsed and after the close of the hearing herein to return the same to the box for spoiled and mutilated ballots, seal said box and return the same.” On the 1st day of October, 1915, the inspectors met. They returned that they had found and indorsed said ballots with their ruling thereon as made on election night, as commanded by said writ, and that “we have taken the envelopes of void, protested and wholly blank ballots heretofore returned by us to the board of election of Nassau county and have opened the same and have taken therefrom the ballot therein contained which was a ballot spoiled and returned by a voter without having been voted and have indorsed the same with the word ‘cancelled’ and have placed said ballots in said envelope.” This ballot in question was marked in pencil “Spoiled,” and the indorsement now made in accordance with the execution of the writ is “ Wholly void on account of marks for Court of Appeals. So indorsed October 1, 1915.” It contained crosses opposite the names of two of the candidates for the Court of Appeals and was only ineffective as to that office. When there was a halt in the hearing the Special Term said: “At the present time I don’t feel sufficiently convinced to change the count with that ballot; if you have anything further to present, further evidence, I will hear it.” Counsel for the relator then said: “I will reserve that then.” We cannot find that anything further was offered. The court finally ruled that the motion that offered the said ballot for addition to Mr. Brown’s count should be denied. Hogan, J., in the Court of Appeals (People ex rel. Brown v. Freisch, 215 N. Y. 373), says: “In all cases where the petition does not disclose that ballots canvassed as void or protested are so marked or identifiable as to permit the inspectors to immediately select said ballots from those in the box, the court is confined in the examination of the protested, void and wholly blank ballots to such ballots as are found in the envelopes. * * * Where ballots are found in the envelopes that were spoiled or canceled ballots, the court may order them marked as such and placed in the boxes where they properly belong. Any marks or writings made by the inspectors upon ballots which may be removed from the ballot boxes should be preserved, and additional indorsement made thereon as directed under the order of the court should indicate that it was made pursuant to such order.” The argument of the intervenor is that the writ of mandamus -under which these officers acted directed them to indorse their rulings upon the ballots in the envelopes “ upon which indorsement had not been made at the time of the canvass thereof,” and it is submitted that as this ballot 367 had been indorsed “ spoiled ” at the original canvass, the inspectors were not at liberty, under the second auxiliary writ of mandamus, to indorse the same “ wholly void.” The argument of the relator is that the Court of Appeals opinion plainly contemplates that new indorsements will he placed on ballots. And it is said that if this principle is not deducible from the Court of Appeals opinion, then its opinion is silent on that point. The Special Term denied the motion to add the ballot to the relator’s vote. As we understand the decision of the Court of Appeals, it does not go so far as to authorize the officials under such writ of mandamus now to indorse a ballot indorsed spoiled ” on the original canvass on election night as void or wholly void. In any event, we think that the proof in this particular instance would not have warranted the Special Term in regarding this ballot as one originally treated as void by the inspectors on election night, and upon determination that it was valid as to the relator, to rule that it should now be added to his vote. This disposition made by the Special Term is, therefore, affirmed.

The order is affirmed, without costs, and the stay is vacated.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred; Mills, J., not voting.

Order affirmed, without costs, and stay vacated.  