People ex rel. Courtney v. Unger — 85 A.D. 251

Majority

p. 251

The People of the State of New York ex rel. William N. Courtney, Respondent, v. George Unger and Others, Acting Board of Inspectors and Canvassers of the Town of Arietta, Hamilton County, N. Y., and Oscar L. Howland, Town Clerk of said Town of Arietta, Appellants.

(No. 2.)

Headnote

Mandamus — where, after a board of canvassers has been, directed to,count a ballot, an opposing candidate obtains an alternative writ directing that it reject the ballot, the hoard is not entitled to appeal from an order setting aside such alternative writ.

In a proceeding instituted on the relation of one William IT. Courtney, a peremptory writ of mandamus was issued directing the hoard of canvassers of the town to reconvene and count as valid a ballot which they had previously rejected as void. After the board of canvassers had obeyed the command of the writ, one Foote, who was a candidate for office at the election in question and who had not been made a party to the prior proceeding, instituted a proceeding entitled in the same manner as the previous proceeding to procure a writ of mandamus requiring the board of canvassers to again reconvene and reject the ballot in question. An alternative writ of mandamus was there

p. 252

upon issued, pursuant to which the board of canvassers again reconvened and ■rejected the ballot.

Courtney, the relator in the previous proceeding, then obtained an order setting aside the alternative writ issued in the second proceeding and all proceedings thereunder. The board of canvassers appealed from the last-mentioned order, but Foote did not.

Held, that the board of canvassers were bound by the determination in the proceeding first instituted and were not aggrieved by the order appealed from.

' Qumre, whether Foote had a right to the alternative writ of mandamus.

Parker, P.- J., dissented.

Appeal by the defendants, George Unger and others, acting board of'inspectors and canvassers of the town of Arietta, Hamilton county, N. Y., and another, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the. offices of the clerks of the counties of Fulton and Hamilton on the 21st day of May, 1901, vacating and setting aside an' alternative writ of mandamus theretofore granted herein upon the application of one Lee N. Foote, and also all proceedings of the said board of canvassers thereunder.

Eugene D. Scribner, for the appellants.

Frank L. Anderson and Andrew J. Nellis, fox the. respondent.

This proceeding, although entitled as “ The People ex rel. William N. Courtney” seems to have been instituted upon the relation of one Lee N. Foote who was a candidate for an office at the town meeting of the town of Arietta held upon the 19tli day of March, 1901. The petition of said- Foote recites the application for the writ of mandamus issued in a proceeding similarly entitled, an appeal in which has been at this term dismissed. It recites that the board of canvassers in pursuance of the direction in the said peremptory writ of mandamus had reconvened and recanvassed the votes and had counted the votes so claimed to be void; and that the petitioner was injured thereby, and prayed for a writ of mandamus requiring the said board to again recon váne and to again recanvass the votes and reject the said ballot. Thereupon an alternative writ was issued which directed the said board of canvassers to reconvene and recanvass said votes and reject said ballot or show cause

p. 253

at a time thereafter specified why the same should not be done. Pursuant to that alternative writ, the said board again reconvened, and again recanvassed the vote and rejected the said ballot, and declared the result as it was first declared. Thereupon the relator Courtney, in the first proceeding, moved, at a Court held by the justice granting the alternative writ, to vacate the same and to set aside all proceedings had thereunder. This motion was sent before Mr. Justice Russell, who had granted the peremptory writ of mandamus, and after the hearing of the motion, an order was made setting aside the alternative writ and all proceedings had thereunder. From this order an appeal has been taken by the board of canvassers.

The argument of the appellants is that Foote was not a party to the first proceeding, and that the said board having acted and having counted said ballot and declared the result upon such recount, he was in a position where his only remedy was to procure this writ for a recount, having the same right that he would have had if the original count had been the same as that made in pursuance of the peremptory writ of mandamus. We do not deem it necessary to discuss what the remedy of Foote would have been for what he claimed to be an erroneous canvass made pursuant to an order in a proceeding to which-he was not a party. It would seem as though this proceeding should have been entitled upon the relation of Foote, for it was upon his relation and to procure relief in his behalf that the proceeding was instituted. Waiving this question, however, and assuming for the argument that Foote had a right to this alternative writ of mandamus, he has not appealed from the order of the Special Term. The parties appealing here are the board, of canvassers who were parties to the peremptory mandamus in the proceeding cognate hereto. They are bound by the determination in that proceeding and have no grievance here to present to an appellate court. The appeal, therefore, should be dismissed, with ten dollars costs and disbursements.

All concurred, except Parker, P. J., dissenting.

Appeal dismissed, with ten dollars costs and disbursements.