People ex rel. Putzel v. Simonson — 16 N.Y.S. 118

Majority

p. 118

People ex rel. Putzel v. Simonson et al.

(Supreme Court, General Term, First Department.

October 16, 1891.)

Headnote

Corporations—Election op Officers—Mandamus to Inspectors.

Laws N. Y. 1890, c. 563, § 15, providing that the court shall, on application of a person aggrieved by any election of a corporation, etc., on notice to those affected thereby, “forthwith and in a summary way hear the affidavits, proofs, and allegations of the parties, or otherwise inquire into the matter or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require, and may in its discretion order issues to be made up in such manner and form as it may direct, to try the rights of the respective parties touching the matters complained of, ” does not authorize the court to compel the inspectors of the election to count votes which they have theretofore refused to count, though they may have acted erroneously, but the only relief which can be afforded where the inspectors have acted improperly is to order a new election.

Appeal from special term, New York county.

Application by Charles Putzel for a mandamus to compel John Simonson and others, inspectors of an election by stockholders, to count certain votes, and amend their certificate of election. The application was made on an affidavit setting forth that relator was the-secretary of the United States Cremation Company, Limited; that, pursuant to the by-laws of said company, a meeting of stockholders for the election of directors was held June 30,1891, at which the defendants were inspectors; that the relator held the proxies of certain stockholders, which proxies were in the usual form, except that they were to be used at a meeting to be held “June, 1891,” and that defendants refused to receive them, or permit relator to vote thereon. An order to show cause why the inspectors should not be required to receive and count the votes represented by these proxies, and their certificate of election be amended, was granted, and upon the return-day thereof defendants appeared and submitted themselves to the direction of the court in the premises, the application being opposed by two of the directors of the company. A peremptory writ was granted, and defendants appealed.

Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.

Charles T. Haviland, for appellants. Archibald L. Sessions, for relator.

We do not think that section 15 of chapter 563 of the Laws of 1890^[1] justified the granting of a mandamus. The section in question is simply a re-enactment of the provisions of the Revised Statutes, and the relief intended by the section was to establish an election already had, or to set aside that election and order a new one; and the proceeding authorized is summary, and not by mandamus. There is nothing in that section which

1 Section 15 of chapter 563 of the Laws of 1890 provides as follows: “The supreme court shall, upon the application of any person or corporation aggrieved by or complaining of any election of any corporation, or any proceeding, act, or matter touching the same, upon notice thereof to the adverse party, or to those to be affected thereby, forthwith and in a summary way hear the affidavits, proofs, and allegations of the parties, or otherwise inquire into the matter or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require, and may in its discretion order issues to be made up in such manner and form as it may direct, to try the rights of the respective parties touching the matters complained of ”

p. 119

authorizes the court to compel the inspectors of election to count votes which they have heretofore refused to count, although they may have acted erroneously. The only relief which could be afforded where the inspectors had acted improperly would be to order a new election in case justice requires such action. The proceeding for that purpose is prescribed by statute. The order appealed from should be reversed, with costs of appeal, and the proceedings dismissed, with $20 costs. All concur.