People ex rel. Stone v. Minck — 21 N.Y. 539

Majority

p. 580

People ex rel. Stone v. Minck.

Headnote

Alteration.—Election return.

Where an election return is produced from the proper custody, the party relying upon it is not required to explain an erasure and alteration, visible upon its face, and apparently made at the same time, and by the-same hand, as the obliterated letters and figures.

The inspectors’ return is primdfaeie evidence of the number of votes cast for a candidate.

* Appeal from the general term of the Supreme q0U1.^ the first district, where a judgment of ouster against the defendant had been affirmed.

This was an action in the nature of a quo warranta, to try the defendant’s title to the office of trustee of common schools, for the twentieth ward of the city of Now York. The only question was, what number of votes were received by the relator, in the third election district.

p. 581

On the trial, the relator offered in evidence the return made by the inspectors of election, duly filed in the office of the cleric of common council. On inspection of the paper, it appeared, that the number of votes originally written, both in letters and figures, opposite the name of the relator had been altered from 266 to 273. The judge admitted the return in evidence, without explanation of the erasure and alteration, and the defendant excepted. There was a verdict for the plaintiff, and judgment of ouster, which having been affirmed at general term, the defendant took this appeal.

Doyle, for the appellant.

Bunlde, for the respondent.

The right to the office in question depended, at the trial, oh the vote of the third election district of the twentieth ward—there being no dispute in regard to all the other districts. In respect to that district, the number of votes given to the plaintiff and defendant, respectively, was proved only by the statement or return of the district canvassers; if this was properly received in evidence, the plaintiff had a majority of four votes, and was duly elected. We entertain no doubt upon this question. The election laws do not, in terms, declare that the return of votes made by inspectors of election, or canvassers, as they are called in the city of New York, shall be evidence in courts of justice, but they are so, upon well-established general principles. (Laws of 1842, pp. 109, 122, 123; Laws of 1857, vol. 1. pp. 597, 894; 1 Greenl. Ev. §§ 483, 484, et seq.; 1 Starkie Ev. 195.)

In this case, it seems, that the number, two hundred and sixty-six, had been first written upon the statement as the plaintiff’s vote; that this number was erased and two hundred and seventy-three written over it, as the re

p. 582

turn appeared, when introduced in evidence. We think, the plaintiff Avas not called upon to explain this erasure or alteration. We are to assume, because the contrary is not shown or suggested, that, on an inspection of the writing, at the trial, the larger number was plainly written over the smaller, so as to-leave no doubt as to the actual reading of the document, and that the alteration appeared to be made with the same hand as the residue of the statement, with the same ink, and at the same time. The law does not presume wrong, where none is proved, and I think, that even a private Avriting Avould be receivable in evidence, Avhere no other circumstances appear than those here assumed. But election returns are documents of a public nature, made out and filed in the proper office, under the responsibilities of an official oath, and they remain in the custody of a SAVorn public officer. The return in question, so far as Ave knoAV, had been faithfully kept by the proper officer, until he produced it at the trial, and there is no room for a presumption that it had been fraudulently altered.^[1]

ruhng a* ^e trial being correct, therefore, in regard to the admission of this statement as evidence, there Avas no other question in the case material to the result.^[2] The judgment must be affirmed.

Judgment affirmed.

1 The same point was ruled in Devoy v. New York, 35 Barb. 264 .

2 As to the effect of an election return, see Ewing v. Thompson, 43 Penn. St. 372 ; Kerr v. Trego, 47 Ibid. 292; Mann v. Cassidy, 1 Brewst. 11.