
    The People ex rel. Edwin W. Fiske, App'lt, v. William H. Devermann et al., Resp’ts. The People ex rel. Edson Lewis, App’lt, v. Same, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    
      1. Appeal—Mandamus.
    An order, directing an alternative writ of mandamus to issue, cannot be reviewed on the merits.
    2. Election—Canvass.
    After the inspectors have made a canvass and certificate, they cannot be permitted or compelled to make a new canvass, or a second certificate of the canvass.
    Appeal from an order, denying an application for a writ of mandamus.
    
    
      Roger M. Sherman, for app’lts ; Joseph S. Wood, for resp’ts.
   Cullen, J.

The two appeals involve the same questions of fact. The relators, Fiske and Lewis, were candidates for the office of mayor of the city of Mt. Vernon at the election in May last. Devermann, Hoffman, and Jones were inspectors of election at the polls in the Second election district of the Fourth ward. At the polls were two ballot boxes,—one to receive ballots for city officers, the other for ballots on the question of certain city expenditures. At the close of the polls and the commencement of the canvass it was found that, while 309 votes had been cast for city officers, but 305 ballots were in the box. These were canvassed, and a statement of the result announced. On the opening of the other box there was found in it ballots for Fiske as mayor. As to whether there were 305 or 306 in the first box, and whether 3 or more in the second box, is disputed. It appears that the inspectors signed the statements of the canvass in blank some time before the canvass commenced, and each inspector retained a copy. Upon the discpvery of the ballots for city officers in the second box, dispute arose between the inspectors as to the course to be taken in regard to them. Devermann and Hoffman insisted upon counting them; Jones objected. What did then transpire is a matter of such dispute. It appears, however, to be conceded by Devermann and Hoffman in their affidavit that they agreed to the claim of Jones, and filled- out the certificate of the canvass according to the result as found from the count of the first box, and not counting the ballots found in the,second box. These inspectors assert that it was agreed by all that the four rejected ballots should be attached to the certificate held by Devermann, and his copy of the certificate filed with the city clerk. Jones denies this. Devermann failed to file his copy certificate with the city clerk, and then Jones filed his. Afterwards Devermann and Hoffman filed a new certificate, by which the relator Fiske was credited with the additional four ballots. The relator then applied for a mandamus to the city clerk, directing him to return the two certificates, and to the inspectors, directing them to forthwith make a legal statement of the canvass in the place of the two on file. On a hearing of this application the court directed an alternative writ to issue, and meanwhile stayed the canvass of the returns by the common council. The first appeal is from that order.

The grant of the alternative writ was so much a matter of discretion that it is not the subject of review on appeal. Code, § 2067, permits such writ to be granted without notice. By § 2075 an alternative writ cannot be quashed or set aside, upon motion for any matter involving the merits. The respondents must either make a return of the writ or demur. If the appellants deemed the facts stated in the writ insufficient to entitle the relator to relief, they should have demurred. If the facts were stated untruly, they should have made a return of the writ. In either case, a decision on the merits could have been long before even the argnment of this appeal. We are asked to reverse the order, directing the writ to issue, not on any question of irregularity, but solely on the merits. As the appellant, by the express terms of the Code, could not have moved to set aside the writ on such grounds, we think he is precluded from accomplishing that object by an appeal. If we reverse the- order appealed from, it would be, in effect, merely setting aside the writ. The appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should he dismissed. _ _ '

_ _ Assuming the power of the court, in proceedings of mandamus, to grant a.stay, we think that the stay in this particular case was improvidently granted. The signing of the statement in blank in advance of the canvass was, of course, wrong, and irregular. But by the consent and action of, the canvassers the statements were filled up with the result agreed upon by all of their number. From this time they became effective. On. this appeal all disputed questions of fact are to be assumed in favor- of the relator. But, giving the greatest force to the affidavits on his behalf, it is clear that the canvassers did canvass the vote,—erroneously, it may be, but nevertheless canvassed it,—and rejected the ballots found in the wrong box. The ballots rejected, if attached to the certificate, would not have controlled or varied it. People ex rel. Noyes v. Board of Canvassers of Chemung Co., 126 N. Y. 401; 37 St. Rep. 778. Devermann, however, did not attempt to comply with what he states to have been the agreement, but proceeded to make a new certificate and canvass, in which Hoffman joined. The inspectors, having made a canvass, could not be compelled or permitted to make anew one. By § 132, Election Law, even where the returns are sent back to inspectors for omissions or clerical errors, they are forbidden to change or alter any decision before made by them. Here, as already stated, the two other inspectors admit that they acceded to Jones’ claim, and decided not to count the ballots. The certificate filed by Jones was therefore valid, and a true statement of the action and canvass of the inspectors. So much of the ordér as grants a stay should be reversed.

The second appeal is from an order made at special term denying the relator’s motion to the common council of the city of Mt. Vernon commanding it to disregard upon any canvass the second certificate filed by Devermann and Hoffman, and to those inspectors to withdraw such return. On the facts stated we can see no appearance of authority for this second return. It was the action of only two of the inspectors. It was not made at the close of the canvass, but subsequently thereto, and after a valid certificate of canvass had been made. The writ should therefore have been granted, so far as the application related to the common council. As to the inspectors Devermann and Hoffman, no duty rested on them to withdraw the particular paper filed by them, nor was it in their power to do so. If the certificate was void, it should be disregarded.

The order made in the first proceeding should be reversed so far as it grants a stay of proceedings, and the appeal from' the remainder of the order should be dismissed.

The order made in the second proceeding should be reversed so far as it denies the application for a mandamus to the common council, and so far as it denies a mandamus against the inspectors should be affirmed. On these appeals neither party should recover costs as against the other.  