
    In the Matter of the Complaint of John J. Walsh against James S. Church and Others, Defendants. In the Matter of the Complaint of John J. Walsh against John T. McWilliams and Others, Defendants.
    Second Department,
    October 9, 1906.
    Election Law—power of court over returns of primary elections.
    The written statement of results of a canvass of votes cast at a primary election controls over the oral proclamation of the result. ■
    The Special Term has power upon proper application to set aside the canvass of inspectors of a primary election, to adjudge the true result,- to direct the inspectors to reconvene and make and file a record showing the results adjudged, to nullify the certificates of election, and to direct the issuance of others to candidates entitled thereto at any time before the candidates first declared elected have actually entered into possession of their offices.
    Special proceeding under the Primary Election Law.
    
      Ernest P. Seelman, for the appellant.
    ■ R. Percy Chittenden, for the respondent.
   Per Curiam :

At the argument the learned counsel for the respondent said that so far as the record of this appeal was Concerned he rélied upon the proposition that the oral proclamation of the result required by the Primary Election Law must control when it and the written statement of the result of the canvass varied.

We are of opinion that this contention is not sound. The proclamation is not the result, but merely an oral public statement of the result; an error in the proclamation does not in effect change the result so as to accord with that error. The substantial question turns upon the ballots cast at the election. We are of opinion that the evidence at Special Term is not of sufficient probative force to establish such fraud or such falsity or such error in the written statement of the canvass as warrants the orders now before us for review. At the same time we think that the Special Term has jurisdiction upon such an application as was made in this case to set aside the statement of canvass made by the inspectors, adjudge the true result of the primary election, direct the inspectors to reconvene forthwith and to make and to file with the custodian of primary records' a statement showing the result of the primary election to be as adjudged, to nullify the certificates of election and to direct the issue of certificates of election to the candidates lawfully entitled to them. In any event this may be done before the candidates in possession of the original certificates have actually entered into possession of'their respective offices. Though the time is short, it is sufficient for an adjudication of this matter upon the merits. The orders are reversed, and the applications are remitted to the Special Term for ,such further proceedings ..therein as may seem advisable to either of .the parties.

Woodward, Jenks, Hooker, Rich and Miller, JJ., concurred.

In each case order reversed, without costs, and application rernittéd to the Special Term in accordance with the opinion per curiam. 
      
       See Laws of 1898, chap. 179, § 8, subd. 2, as amd. by Laws of 1899, chap. 473.—[Rep.
     