
    The People of the State of New York ex rel. James F. McLaughlin, Relator, v. Joseph A. Aumenwerth and Others, Constituting the Board of Election Inspectors of the Sixteenth Election District of the Fourth Assembly District of the Borough of Queens, Respondents, and William A. De Groot, Appellant. The People of the State of New York ex rel. William A. De Groot, Appellant, v. The Board of County Canvassers of the County of Queens and James F. McLaughlin, Respondents.
    Second Department,
    December 30, 1909.
    Elections — votes protested as marked for identification should be counted — mandamus proper remedy to correct return.
    A ballot not void but merely protested as marked for identification should be counted. Inspectors of election who have failed to count such protested ballots will be compelled by mandamus-to reconvene and correct their return and will be deemed to continue in office for that purpose.
    Where such inspectors pursuant to a writ of mandamus have corrected their return by counting ballots protested as marked for identification, a subsequent writ does not lie to compel the board of county canvassers to direct the election inspectors to again change the return so that the figures conform to the tally sheets of the vote in that district. Such relief would in effect reverse the prior order.
    Appeal by William A. De Groot from an order of the Supreme Court in the first above-entitled proceeding, entered in the office of the clerk of the county of Queens on the 8th day of November, 1909,. granting an application for a peremptory writ of mandamus, and from an Order in the second above-entitled proceeding entered in said clerk’s office on the 23d day of November, 1909, denying the relator’s application for a peremptory writ of • mandamus.
    
      William A. De Groot, appellant, in person [FranMin M. Tomlin, with him on the brief].
    
      Leander B. Faber, for the respondents.
   Burr, J.:

At the general election held on November 2, 1909, James F. McLaughlin and William .A. De Groot were candidates for the office of Municipal Court justice for the' Fourth Municipal Court district of the borough of Queens. In the sixteenth election district of the fourth assembly district of the said borough 361 ballots were cast. The return filed by the inspectors contained the following statement: “ Statement and Beturn of the Votes for the Office of Justice of the Municipal Court for the Fourth District. The number of ballots cast on which votes were counted for any candidate for office was 361. The number of ballots cast and counted on which there was no vote for the office of Justice of the Munici-. pal Court for the-District was 36. The whole number of ballots on which votes were counted for the office of Justice of the Municipal Court for the-District was 325,” of which William A. De Groot received eighty-six, James E. McLaughlin received one hundred and seventy-four and Balpli P. Buell received sixty-five. Immediately, thereafter and before the returns had been canvassed by the board of county canvassers James F. McLaughlin, the relator in the first entitled proceeding, presented to the Special Term of the Supreme Court affidavits to the effect that, included ■ among the ballots thirty-six in number, .concerning which the statement had been made that there was no vote thereon for the office of justice of the Municipal Court, there were seventeen ballots, each of which contained a vote for such justice, which during the canvass had been “ protested as marked for identification,” and had been so marked by the chairman of the board of inspectors and had been placed with' the void ballots in an envelope provided for that purpose, and not counted for either candidate. One of the inspectors made an affidavit to the effect that “ the said board of inspectors were of the opinion that the law did not require such protested ballots to be counted and for that reason and acting in good faith the same were not counted.” Upon the return of the order to show cause granted on said application, the entire board of inspectors appeared in open court and admitted the truth of the statement contained in the moving affidavits, and no affidavits were presented in opposition. Upon due notice to the said William A. Do Groot, who was allowed to intervene in the proceeding, the court granted a peremptory writ of mandamus requiring the said board of inspectors to meet in the office of the county clerk at a designated time and in the.presence of the contesting candidates to open the sealed envelope filed by .them, which contained, the void and protested ballots, and to canvass and to count the seventeen protested ballots which had not been counted and make a true return thereof and then replace the said protested ballots, statement and return in their respective envelopes, seal the same and forthwith file them with the- said county clerk. From the order granting this writ of mandamus an appeal was taken by the said William A. De G-root. The order was properly made.

The • Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 370) provides as follows: “When any particular ballot is not .void and an inspector of election or other election officer or duly authorized watcher shall, during the canvass of the vote, declare his belief that such 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 the words ‘ ¡irotested as marked for identification,’ and shall specify over their signatures upon the' back thereof the mark or marking upon such ballot to which objection is made. The votes upon each such ballot shall be counted by them, as if not so protested.” The proceeding here taken is not in the nature of a recount of ballots already counted, but is in effect one to compel the board of inspectors to complete an imperfect and uncompleted canvass and declare the result in accordance therewith. Under such circumstances a writ of mandamus is the proper remedy. (People ex rel. Smith v. Schiellein, 95 N. Y. 124; People ex rel. Bradley v. Shaw, 133 id. 493; Matter of Stewart, 155 id. 545; People ex rel. Sturtevant v. Armstrong, 116 App. Div. 103.) If there had been a completed canvass made and a result certified which it was sought to change by a recount, a different question might be presented. (People ex rel. Brink v. Way, 179 N. Y. 174; Matter of Hearst v. Woelper, 183 id. 274.) By the express provisions of the statute (§ 381) the boards of inspectors of election districts are continued in office until after the court has reviewed their action with regard to these protested ballots, if such review is had. This was a proceeding to compel action on their part respecting the same in accordance with law, so that the court might be in a position to review the correctness of their decision. The greater includes the less. If they are deemed to be in office until the time for such review has expired, they were in office for the purposes of this proceeding.

After the board had met and acted in accordance with the directions of the above-mentioned writ and had counted and canvassed the votes represented by the protested ballots, they corrected their return and statement so that it read as follows : “ Statement and Return of the Votes for the Office of Justice of the Municipal .Court for the Fourth District. The number of ballots cast on which votes were counted for any candidate for office was 361. The number of ballots cast and counted on which there was no vote for the office of Justice of the Municipal Court for the -:--District was 19. The whole number of ballots on which votes were counted for the office of Justice of the Municipal Court for the--— District was 342 of which Win. A. De Groot received 90, Jas. F. McLaughlin received 181 and Ralph P. Buell received- 71.” Thereupon the said De Groot applied for a peremptory writ of mandamus requiring the board of county canvassers to order and direct the board of election inspectors of the sixteenth election district of the fourth assembly district to appear before them and again change the return so that the figures upon it should conform to the tally sheets of the vote in said election district. McLaughlin intervened in this proceeding, and. from the order denying the application the appeal in the second above-entitled proceeding is taken.

To have, granted the relief asked for would have been in effect to reverse the order granted in the first above-entitled proceeding. In a sense the tally sheet is the original entry of the casting and canvassing of the vote, and ordinarily it should control in case of any discrepancy between it and the clerical statement made from it by the inspectors after the completion of. the canvass for the purposes of convenience. . (Matter of Stewart, supra.) But in this case there was no discrepancy between the tally sheet and the' return so far as the number of votes cast is concerned, nor as to the number of votes'cast for each candidate so far as the count had been completed. It is the duty of the inspectors to canvass the vote. (Election Law, supra, § 366.) The duty of the poll clerks is to register' their decision with respect to the same (Id. § 369), and make tally sheets thereof (Id. § 355). When the inspectors had completed' the count ¿nd had corrected their return, it would seem to be an idle ceremony to summon the poll clerks to meet and correct the tally sheets, .since their action would at most be but the further registration of the decision of the inspectors upon a canvass of the votes.

The order appealed from in the first above-entitled proceeding should be affirmed, with ten dollars costs and disbursements, and the order appealed from in the second above-entitled proceeding should also be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Thomas and Rían, JJ., concurred.

Order.in the first above-entitled proceeding affirmed, with ten dollars costs and disbursements, and the order in the second above-entitled proceeding affirmed, with ten dollars costs and disbursements..  