Majority
p. 705The People of the State of New York ex rel. Edwin W. Fiske, Appellant, v. Edward M. Anderson and Edward H. Kent, as Inspectors of Election of the First Election District of the Third Ward of the City of Mount Vernon, N. Y., and Others, Defendants, Impleaded with Edward F. Brush, Respondent. Second Department, January 16, 1918.
Headnote
Elections — mandamus to compel inspectors of election to correct return as to soldier votes — intention of voter.Where a soldier ballot marked “ Dr. Brush ” had not been protested, and the inspectors of election had credited the vote to Edward F. Brush because such intention of the voter was clearly apparent, a writ of mandamus will not lie to compel the inspectors of election to correct their return.
Appeal by the relator, Edwin W. Fiske, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of December, 1917, denying application for a peremptory writ of mandamus to the inspectors of election above named to correct their return, which included among the votes counted for defendant Edward F. Brush a ballot for mayor, marked “ Dr. Brush.” Such denial was stated to have been because said ballot had not been protested, and besides the inspectors of election had properly credited this vote to Edward F. Brush because such intention of the voter was clearly apparent.
p. 706
Arthur M. Johnson [Sydney A. Syme and Frank A. Bennett with him on the brief], for the appellant.
George H. Taylor, Jr. [James H. Cavanaugh with him on the brief], for the respondent.
The order should be affirmed on both grounds, with ten dollars costs and disbursements.
Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concurred.
Order of December 26, 1917, affirmed on both grounds, with ten dollars costs and disbursements.