
    PEOPLE ex rel PUTZEL v. SIMONSON. MATTER OF PETITION OF PUTZEL
    
      JV. Y. Supreme Court, General Term, First Department;
    
    
      October, 1891.
    
      Special Term;
    
    
      December, 1891.
    1. Corporation; election of officers.] Laws of 1890, chapter 563, section 15 is substantially a re-enactment of the provisions of the revised statutes  and only authorizes an application to the court to establish or set aside a corporate election in a summary way and not by mandamus.
    2. The same.] There is nothing in such section which authorizes the court to compel the inspectors of an election to count votes which they have refused, although they may have acted erroneously. The only relief which can be afforded in such a case is to order a new election, if justice require it.
    3. The same. Application for a new election.] The corporation must have notice of an application to the court for a new election of its officers under the Laws of 1890, chap. 563, § 15, in like manner as under the revised statutes.
    I. Mandamus, Oct., 1891.
    
      Appeal from an order of the special term granting a mandamus.
    The order directed that a peremptory writ of mandamus issued against John Simonson, Robert E. Babb and Sigismond Berendsohn, as inspectors of election at an annual meeting of the stockholders of the U. S. Cremation Co., commanding them to file with the county clerk an amended certificate of election in which it should appear that the proxies held by the relator, Charles Putzel, were received and the votes thereon counted.
    
      Charles T. Haviland, for appellants.
    I. A legal duty must devolve on defendants to entitle the relator to the writ (Citing Code Civ. Pro. § 2070; People v. N. Y. L. E. & W. R. R., 104 N. Y. 58).
    II. A mandamus will not issue to compel inspectors of elections to recanvass ballots (Citing People ex rel Gaige v. Reardon, 49 Hun, 425).
    III. A mandamus will not be granted unless the relator has a clear legal right to have the act done (Citing People ex rel Nicoll v. N. Y. Infant Asylum, 122 N. Y. 190; People ex rel Sayles v. Fitzgerald, 13 N. Y. Supp. 663 ; People ex rel Hodgkinson v. Stevens, 5 Hill, 616; Philips v. Wickham, 1 Paige, 590; Laws of 1890, chapter 564, § 54).
    IV. A mandamus will issue only when there is no other legal remedy (Citing Laws of 1890, chapter 563, § 15 ; Matter of Pioneer Paper Co., 36 How. Pr. 102).
    V. A mandamus will not be granted by consent (Citing Wood on Mandamus, 2 ed. p. 40).
    
      Archibald L. Sessions, for respondent.
    I. The mandamus was authorized (Citing Code Civ. Pro. § 2070; People ex rel v. Supervisors, 64 N. Y. 600 ; People ex rel v. Patton, 5 State Rep. 313 ; People v Assessors, 52 How. Pr. 140; People ex rel v. Supervisors, 11 Abb.Pr. 114; aff’d 3 Abb. Ct. App. Dec. 566; Laws of 1890, chap. 563, § 15 ; People ex rel v. Board of Canvassers of Greene, 12 Abb. N. C. 95 ; appeal dismissed 29 Hun, 209 ; Paine on elections, §§ 911-927, 931).
    II. The order was not appealable (Citing Whittaker v. Stebbins, 36 N. Y. Super. 192).
    
      II.—Petition for a new election December, 1891.
    Petition by Charles Putzel for a new election of officers of the U. S. Cremation Co. upon the ground that at the election at the last annual meeting of stockholders, proxies held by the petitioner had not been received and the votes thereon counted.
    
      
      Laws of 1890, chapter 563, § 15, provides that, “ The supreme court shall upon the application of any person or corporation aggrieved by, or complaining of any election of any corporation, or any proceeding, act or matter touching the same, upon notice thereof to the adverse party, or to those to be affected thereby, forthwith and in a summary way, hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and establish the election or order a new election or make such order and give such relief as right and justice may require, and may in its discretion order issues to be made up in such a manner and form as it may direct to try the respective rights of the parties touching the matter complained of.”
    
    
      
       3 R. S. (8th ed.) p. 1729, § 5.
    
   Per curiam:

We do not think that section 15 of chap. 563 of the Laws of 1890 justified the granting of a mandamus. The section in question is simply a re-enactment of the provisions of the revised statutes, and the relief intended by the section was to establish an election already had, or to set aside that election and order a new one and the proceeding authorized is summary and not by mandamus. There is nothing in that section which authorizes the court to compel the inspectors of election to count votes which they have heretofore refused to count, although they may have acted erroneously. The only relief which could be afforded where the inspectors had acted improperly would be to order a new election in case justice requires such action. The proceeding for that purpose is prescribed by statute.

The order appealed from should be reversed with costs of appeal and the proceedings dismissed with $20 costs.

Van Brunt, P. J., Daniels and Ingraham, JJ.

Charles Putzel, petitioner in person.

Charles T. Haviland, opposed.

Lawrence, J.

This application must be denied for the reason that it nowhere appears that the corporation has had notice of the proceedings. The general term of this department held upon the application for a mandamus that the 15th section of chapter 563 of the laws of 1890 is simply a re-enactment of the provisions of the Revised Statutes. Under the provisions of the Revised Statutes it was held that the corporation itself should be made a party and be served with notice of the presentation of the application to the court (See Matter of Pioneer Paper Co., 36 How. Pr. 102 ; Schoharie Valley R. R. Co., 12 Abb. N. S. 394).  