
    In the Matter of the Election of Benjamin S. Fribush to the Party Position of Member of the Republican County Committee in and for the Third Election District of the Fifteenth Ward of the City of Albany.
    Supreme Court, Albany County,
    September 22, 1931.
    
      George W. Greene, for the petitioner.
    
      Borden H. Mills, for the respondents Hurley and Laut.
    
      Andrew A. Padula, in person, and for William A. Settle.
   Bliss, J.

The petitioner seeks to compel the inspectors of election for the third election district of the fifteenth ward of the city of Albany to make in duplicate their returns of the canvass of the votes cast at the primary election held on the 15th day of September, 1931. The petitioner, Andrew A. Padula and William Settle were candidates contesting for the two memberships in the Republican county committee of Albany county which were to be filled at this primary election. Upon the opening of the Republican ballot box the inspectors of election found that the ballots therein were more than the number of ballots shown to have been deposited therein. Through a mistake and a misunderstanding as to the law the inspectors did not proceed as directed by section 215 of the Election Law, but opened these ballots and éxamined them. A disagreement arose and no actual tally was made although it is claimed that an informal record was given to the police department. No return has thus far been made by the inspectors of election as to any of the results of this primary election in this district. The ballots themselves were replaced in the ballot box, which was then sealed and delivered to the board of elections, where it is now held in custody. It is not claimed that there was any fraud on the part of any particular inspector or any particular person.

The respondents contend that the fact that more ballots were found in the box than the number of ballots shown to have been deposited therein is an irregularity which renders impossible a determination as to who was rightfully elected and that the court should order the holding of a new primary election for the position of members of the Republican county committee. None of the persons whose names appeared on the ballot as candidates for any party position or for the nomination for public office are parties to this proceeding.

It is the opinion of the court that this proof is insufficient to warrant the ordering of a new election. The inspectors of election in this district have failed to complete their duties. They should be ordered to reconvene, canvass the ballots and make a proper return in the manner provided by law. i

An order may be submitted accordingly.  