
    In the Matter of the Application of William A. Kirk for a Peremptory Writ of Mandamus directed to John T. Dooling, Charles B. Page, James Kane and John E. Smith, Commissioners of the Board of Elections of the City of New York.
    (Supreme Court, Kings Special Term,
    March, 1910.)
    Election of officers — Nominations and preparation of official ballot — Primary — Enrollment — Marking enrollment blanks.
    The provision of section 26 of the Election Law for marking an enrollment blank with a pencil having black lead is directory merely, and although a voter used a fountain pen he may compel the board of elections to place his party affiliation upon the enrollment book of his election district.
    Application for a writ of mandamus.
    Edward L. Collier, for petitioner.
    James L. Bell (Assistant Corporation Counsel), for Board of Elections.
   Aspinall, J.

This motion is brought to compel the hoard of elections of the city of Kew York to convene and place the party affiliation of the said William A. Kirk upon the enrollment hook of the twentieth election district of the tenth Assembly district of the borough of Brooklyn. It appears from, the moving papers that the petitioner used a fountain pen instead of a pencil having black lead in marking a cross within the circle beneath the emblem of the party in which he desired to enroll, thereby failing to follow the directions of the statute in relation to this subject. In my opinion the intent of the statute is to secure a statement of party affiliation for public use, as the statute directs the board of elections to publish for general use after election day the declaration of every citizen as to his party affiliation. In this respect it clearly differs from the provision of the statute relating to marking ballots. There the form used is to maintain absolute secrecy as to the manner in which the citizen voted, and directs the use of a pencil having black lead to maintain a uniformity of procedure, so as to prevent the marking of a ballot in any manner which might lead to its subsequent identification. It is, therefore, evident, and it has been so held in this court in numerous proceedings of a similar character in the past, without a written opinion, however, that the law relating to the use of a pencil having black lead on enrollment blanks is merely directory and not mandatory; and where the board cf elections is enabled by the marking to determine the intention of the citizen with reference to his party affiliation it should so record the intent of the citizen.

Motion granted.  