
    In the Matter of the Application of Fred Bonacker for an Order under Article 78 of the Civil Practice Act against Thomas S. H. Clark and Others, Constituting the Common Council of the City of Rensselaer During the Year 1937, and Harvey C. Younghans, City Clerk, as Clerk of the Common Council of the City of Rensselaer, Respondents, and Benjamin Carson, Intervenor. Thomas S. H. Clark and Others, Appellants; Fred Bonacker, Respondent.
   Petitioner seeks an order requiring the respondents, constituting the city board of canvassers of the city of Rensselaer, to reconvene and from the certified tally sheets of the several election districts of the second supervisory district of the city to determine and declare the whole number of votes for the office of supervisor in that district, at the last general election, the number of votes cast for each candidate for such office and the candidate elected to such office. The answer pleads that there can be no tally because of the defect in the voting machine in one of the districts. The tally sheets from that district disclosed that the counter assigned to the intervenor, Carson had stopped between 77 and 78, and that, therefore, all votes cast for him had not been shown in the tally sheets; that 208 affidavits of duly qualified voters stating that they had pulled down the voting lever for Carson have been filed with the city clerk. The averments of the petition and the answer read together disclosed a situation in which the duly of the board of canvassers is clear and unequivocal. That duty is to count the votes shown on the tally sheets as the board finds them, to make the necessary computation of such votes so disclosed, and to declare elected that person shown to have a plurality. Their duty is to declare elected the candidate who, from those tabulations, has a plurality, and the failure of the voting machine is no concern of the board of canvassers. They must act upon the official reports of the election district tallies made to them. The remedy is not with the canvassers. (See People ex rel. Deiater v. Wintermute, 194 N. Y. 99; Sheila v. Flynn, 252 App. Div. 140; Matter of Smith v. Wenzel, 216 N. Y. 421, 426.) Order affirmed, with ten dollars costs and disbursements. Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ., concur. The common council of the city of Rensselaer is directed to convene on May 25, 1938, at eight p. m., at the common council chambers in that city to carry out the directions of the order of the Special Term.  