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People ex rel. McAniney v. Vandervoort

65 N.Y.S. 100 Court N.Y. App. Div. Decision date 1900-06-08 English

Delivered by VAN BRUNT, P. J.

Contents

Majority

p. 100
PEOPLE ex rel. McANINEY et al. v. VANDERVOORT et al.
(Supreme Court, Appellate Division, First Department.
June 8, 1900.)

Headnote

Mandamus—Issuance op Election Certificates—Questions op Fact.
Mandamus cannot issue to compel the issuance of an election certificate, where there are disputed facts to be determined before the relief can be granted.
Appeal from special term, New York county.
Application for mandamus by the people, on relation of James Mc-Aniney and another, against Robert Vandervoort and others, to compel th,e issuance of a certificate of election to applicants as delegates to the Twelfth Republican congress district convention. From an order denying the application, applicants appeal.
Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, RUMSEY, and INGRAHAM, JJ.
M. G. Holstein, for appellants.
John H. Hammond, for respondents.

No, order for a peremptory mandamus could issue in this case, because, as appears from the papers, there are disputed questions of fact which it would be necessary to determine in the manner prescribed by law before the relief asked for could be granted. The main question upon which the appeal in this case is founded is as to the fact that there were differences in the color of the paper .used for ballots by the appellants and respondents. But this difference, even if it existed, does' not necessarily affect the validity of the votes cast, because there is evidence tending to show that the paper upon which the ballots of the respondents were printed had the same test of authenticity as the paper upon which the ballots of the appellants were printed. It appears from the evidence that both had been approved by Mr. Plimley, chief clerk of the bureau of elections of the police department of the city of New York, who was the custodian of the primary records. If there was any conflict between the parties in respect to this matter, then, clearly, an issue of fact was raised, and a peremptory mandamus could not issue.

The order should be affirmed, with $10 costs and disbursements. All concur.