Majority
p. 115Argued January 13, 1944; decided January 20, 1944.
A. David Benjamin and Irving Ginsberg for Thomas F. Cosgrove, appellant.
Headnote
The foreign war ballot removed from an unsealed envelope in the Forty-first Election District of the Second Assembly District and counted for Walsh is void. The protested overseas war ballot removed by the court from an unsealed envelope in the Twenty-first Election District of the Second Assembly District and counted for Walsh is void.Irving BivTcin and Jerome Otis Ellis for Thomas J. Walsh, respondent.
The Bilyek and O’Keefe ballots, canvassed as foreign war ballots on December 15,1943, were properly counted
p. 116
as valid votes for Walsh. In one ease the protest was too late and in the other the envelope was substantially sealed.
Ignatius M. Wilkinson, Corporation Counsel (Thomas W. A. Crowe of counsel), for S. Howard Cohén et ah, as Commissioners of Elections of the City of New York, respondents.
The indorsements upon two envelopes of war voters in foreign service were not executed as required by the statute and the votes should have been rejected if objection had been made upon the original canvass (See Election Law, § 319). In the absence of objection the envelopes were opened as provided in the statute and the ballots deposited in the ballot box. We agree with the courts below that the ballots so deposited without objection must be .counted., Protest thereafter will not avail even where it may he possible to determine for which candidate such ballot was cast.
The order should be affirmed, without costs.
LehmaN, Ch. J., LoughraN, Rippey, Lewis, CoNWay, Des-moNd aiid Thaoher, JJ., concur.
Order affirmed.