
    In the Matter of the Application of Louis J. Russo, Appellant, against S. Howard Cohen and Others, Constituting the Board of Elections of the City of New York and the County Board of Canvassers of the County of Kings, Crawford W. Hawkins and Another, Respondents.
    Second Department,
    October 16, 1940.
    
      
      Charles Pokorny, for the appellant.
    
      David Reich [William C. Chanler, Corporation Counsel], for the respondent Board of Elections of the City of New York.
    
      Crawford W. Hawkins, respondent in person.
   Per Curiam.

As a result of the Special Term’s determination, candidate Hawkins had a plurality of thirty-four. One hundred and twenty-one ballots have been submitted to, and passed upon by, the court with the following result:

(1) Special Term held valid in favor of candidate Russo the ballot described as Exhibit 42. This ballot was marked with a blue pencil and is, therefore, clearly invalid and was so conceded by counsel for appellant.

(2) Six ballots (Exhibits 46, 80, 86, 89, 104 and 112) out of a group of fourteen for Russo submitted by appellant, held by the Special Term to be invalid, are held valid by this court.

(3) Special Term held invalid against candidate Hawkins the sixteen ballots, being Exhibits 2,12, 26, 30, 33, 56, 60, 65, 66, 71, 76, 77, 94, 105, 110 and 116. In our opinion these sixteen are valid in favor of candidate Hawkins. (See Abrahams’ New York Election Law Manual, p. 108 et seq.)

(4) As to the group of forty-one ballots for candidate Hawkins and the group of thirteen ballots for candidate Russo, the court is of the opinion that the Special Term ruled correctly upon them under the authority of Matter of Flanagan (246 App. Div. 177).

Deducting from Hawkins’ plurality of thirty-four, the six ballots for Russo declared valid by this court, and adding the one cast for Russo which is declared invalid because it is marked with blue pencil, and crediting to Hawkins the sixteen ballots held void by the Special Term and now held valid by this court, candidate Hawkins has a plurality of forty-five votes. Hence, even if there be deducted twenty-eight votes for Hawkins as a result of the decision on the two groups of forty-one and thirteen ballots respectively on the authority of Matter of Flanagan {supra), Hawkins would still be the successful candidate by a plurality of seventeen votes.

■ The order should be modified by correcting the returns filed by the inspectors of election to read as follows:

Crawford W. Hawkins............................ 1,678 votes

Louis J. Russo.................................. 1,633 votes

Louis Oliffe..................................... 1 vote

Blank ballots.................................... 518 votes

Void ballots..................................... 27 votes

Total votes cast.............................. 3,857

As so modified, the order should be affirmed, without costs, and the findings contained in the order should be modified as follows: (1) By declaring valid the six ballots which are described as Exhibits 46, 80, 86, 89, 104 and 112; (2) by declaring invalid the ballot described as Exhibit 42, and (3) by declaring valid the sixteen ballots described as Exhibits 2, 12, 26, 30, 33, 56, 60, 65, 66, 71, 76, 77, 94, 105, 110 and 116.

Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.

Order modified in accordance with opinion and, as modified affirmed, without costs.  