
    The People ex rel. Richard Watkins et al., Appellants, v. Henry C. Perley et al., Respondents.
    In an action in the nature of a quo warranta, as between the relator and the defendant, the burden is upon the former to make out a better title to the office than that of the latter; while, as between the people and the defendant, the latter may be called upon to show that his possession of the office is lawful. The production of a certificate of election from the proper officer is however sufficient.
    Where a statute prohibits those voting at an election to vote for more than two of three officers to be elected, ballots cast in pursuance of the act are not invalidated by its unconstitutionality; the fact that the electors exercised in part only their privilege or duty of voting, does not affect the votes actually given.
    (Argued January 21, 1880 ;
    decided February 3, 1880.)
    
      This was an action in the nature of a quo warranta, to try the title to the office of alderman from the eighth senate district in the city of New York.
    It appeared by the pleadings and the admissions of the parties that there were three aldermen to be elected in said district, at an election held in that city November 5, 1878, the three relators ran upon the same ticket and received about 1,625 votes, while the defendants received 20,000 upon ballots containing but two names for aldermen, and received the certificate of election. The ground upon which the relators claimed defendants were not legally elected was, that the act under which the election was held (chap. 335, Laws of 1873), provided (§ 4) that no one should vote for more than two aldermen, and was to that extent unconstitutional, and that, therefore, votes containing only two names were illegal. It was not claimed that the residue of the act was unconstitutional. Held, untenable ; that if the voters might have voted for three, and by voting for two only exercised in part their privilege or duty of voting, this did not affect the legality of the votes cast; and so that the question of the constitutionality of the act was not presented.
    Also, held, that although, as against the people, the defendants might have been called upon to show that their possession of the office was lawful, a production of the certificate of election would have been a sufficient answer; and that they were relieved from making it by the allegation in the complaint, that such certificate was made by the proper officer, which was admitted to be true. But that as between the relators and the defendants, the burden was upon the former to make out a better title.
    
      Wilson 8. Wolf for appellants.
    
      JD. J. Dean for respondents.
   Dahforth, J.,

reads for affirmance.

All concur.

Judgment affirmed.  