
    In the Matter of the Application of Jay Medbury, Petitioner, for Examination of Ballots under the Election Law.
    Third Department,
    December 4, 1931.
    
      Ward N. Truesdell, for Phillip Welch, appellant, respondent.
    
      Lee, Levene & Verreau, for Jay Medbury, petitioner, respondent.
   Per Curiam.

Under subdivision 4 of section 330 of the Election Law (as amd. by Laws of 1926, chap. 237) an inspection of protested, wholly blank or void ballots may be directed, together with the recanvass or the correction of any error in the canvass in respect of those ballots. Subdivision 5 of the same section (as amd. by Laws of 1928, chap. 363) deals only with the canvass of returns made by inspectors of election or with the canvass of the returns made by inferior boards of canvassers. This section furnishes no authority for a hearing to open ballot boxes or to inspect or recount the ballots contained in the boxes. Section 333 of the Election Law permits the granting of an order to inspect any ballot, thus requiring an opening of the ballot boxes. The sole purpose of the inspection is stated in the section to be for the preservation of any ballots in view of a prospective contest.” This section does not justify a change in the original returns made by the inspectors of election on election night to reflect the result of a recount made at the time of the inspection of the ballots. Neither does it justify a recount of the ballots in the boxes for the purpose of a new and different return.

All concur.

Motion for stay pending determination of appeal from order directing the board of town canvassers to open ballot boxes granted, with ten dollars costs.  