Majority
p. 776(October 27, 1938.) In the Matter of the Application of Lovelace B. Capehart, Petitioner, Appellant, to Review the Action of the Inspectors of Primary Elections of the 19th Assembly District of the County and State of New York, and the Custodians Records of the Primary Records of the County of New York, in Counting the Ballots Cast and the Canvassing and Recording of the Results of the Primary Elections for Member of Assembly Held by the Democratic Party in the 19th Assembly District, County and State of New York, Held on the 20th Day of September, 1938, etc., against Daniel Burrows, as Candidate for Member of Assembly, the Inspectors of Election of the Election Districts 1 to 39, Inclusive, of the 19th Assembly District, County and State of New York, S. Howard Cohen and Others, Commissioners of the Board of Elections of the City of New York and the County Board of Canvassers of the County of New York, and Archibald R. Watson, County Clerk of the County of New York, Respondents.
Order unanimously reversed on the law and the facts and motion granted to the extent of directing the production by the board of elections and county board of canvassers of all protested, blank or void ballots and a recount and recanvass thereof, upon condition that the petitioner shall deposit with the board of elections the sum of ten dollars for each election district for which recanvass and recount is desired, to cover any expense incurred. Honorable Joseph I. Green, official referee, is designated to conduct such recount and recanvass and to report thereon forthwith to the court at Special Term, Part I thereof. No opinion. Settle order on notice. Present — Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ.