In re Gaynor — 209 A.D. 904

Majority

p. 904

In the Matter of the Petition of John S. Gaynor, Appellant, for an Examination of Ballots. Alfred T. Hobley, Respondent.

Final order modified by providing that the petitioner may have an examination of the ballots upon which his name appeared, as provided in section 333 of the Election Law.^[3] As thus modified the final order is affirmed, without costs. There is no denial in the record of petitioner’s allegations that ballots marked by Republican electors for the petitioner were counted for his opponent. Nor is it denied that when petitioner’s watchers protested such action they were told by the inspectors of such election district that if they did not keep quiet they would be thrown out. There is no proof

p. 905

that there are wholly blank, void or protested ballots preserved in the separate envelopes, as required by the terms of the Election Law.^[2] The court below, therefore, properly denied so much of the motion as asked for a canvass of the wholly blank, void or protested ballots. Upon the inspection of the ballots, granted by the order to be entered in this court, the court is without power in any summary proceeding under the Election Law^[3] to recanvass the votes cast. Such recanvass, if any be had, must be had in a quo warranto, proceeding, as required by law. Kelly, P. J., Rich, Jayeox, Manning and Kelby, JJ., concur.

* See Election Law of 1922, § 226 et seq.; Id. § 123, as amd. by Laws of 1924, chap. 20.— [Rep.

† † See Election Law of 1922, § 330. Since amd. by Laws of 1924, chap. 405.— [Rep.

Footnotes

† † See Election Law of 1922, § 333.— [Rep.