in detail a compliance with all the forms of the statute requisite to a valid appointment. These allegations are not denied by the answer, but the respondent claims that, notwithstanding the official record shows that the vote cast for "him and his opponent was a tie, whereby there was no election, yet the canvassers erred in making the count, and he had in fact two more votes than the relator. In other words, he contends that he had in fact a majority of the votes cast, and the record does not speak the true result. For this reason he refuses to deliver the books, records, and papers to the relator as his successor. In my opinion, the relator is entitled to the benefit of the statute which he has invoked to compel a delivery to him of the papers of the office. Salisbury has a prima facie title to the office, while Holcomb simply claims a right to the office. The former has a clear, prima facie title, while the latter claims only a right to the title. The only question that can be determined in this proceeding under the statute is whether the relator has a clear, prima facie title. If, so, the statute applies, and he is entitled to the remedy, while the claim of right can be determined by a quo warranta only. A prima facie title is sufficient to entitle the relator to the records of the office until the respondent, in an action of quo warranta brought by him, establishes his right to the office by proof that he received a majority of the votes cast. The true rule in these proceedings under the statute is that one having a prima facie title, evidenced by an election or appointment valid on its face, must prevail over one claiming the right to the title. Ex parte Baker,
11 How. Pr. 418 ; People v. Allen,
42 Barb. 203 ; People v. Allen,
51 How. Pr. 97 . I am aware that the Davis Case,
19 How. Pr. 323 , seems to hold otherwise, but the learned justice overlooked the Baker Case, 11 How. Pr. 418 , where the authorities are reviewed and considered; and in the later case of People v. Allen, 42 Barb, 203 , the general term cite approvingly the opinion in the Baker Case. Furthermore, I think that the doctrine of the Davis Case would practically nullify the statute which was designed to afford a summary remedy to one having clear prima facie title. It may be that Holcomb had a majority óf the votes cast for town clerk. I cannot pass upon, that question in this proceeding. If he had such a majority, he has his remedy, and can obtain the office as against the apparent title of the relator; but until he avails himself of his remedy, and establishes his right, the relator is entitled to the papers of the office, and should' have the relief sought in this proceeding. Motion granted.