People ex rel. Fiske v. Anderson

Headnote

People ex rel. Fiske v. Anderson, 181 App. Div. ——, affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the board of county canvassers of Westchester county to reconvene and correct certain errors in the canvass of the soldiers and sailors’ vote cast at the general election on November 6, 1917. By a supplemental official return as to the soldiers and sailors’ ballots canvassed in the first election district of the third ward of the city of Mount Vernon, made by the inspectors of election thereof, pursuant to an order of the Special Term, it was made to appear that all of said ballots were protested. The relator applied for an order directing a subsequent canvass thereof under the provisions of section 381 of the Election Law, if the ballots were “ protested ” ballots, as determined by the aforesaid order. The Special Term directed the subsequent canvass. It appeared on such canvass that twelve

of the soldiers’ votes in this district were cast for Edwin W. Fiske, three were cast for Edward F. Brush, one was cast for Dr. Brush, one was cast for Mr. Brush, and one was cast for Brush. The Special Term directed the counting of all the Brush votes for Edward F. Brush, and credited him with six soldiers’ votes in this district. The relator appealed from so much of the order. as credited Edward F. Brush with the Dr. Brush, the Mr. Brush and the Brush votes. The respondent Brush appealed from the order on the ground that the court was without power to make it. The Appellate Division reversed the Special Term order upon the ground that, as a matter of law, the relator was not entitled to any relief herein.