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In re Brush

75 N.Y.S. 285 Court N.Y. App. Div. Decision date 1902-03-19 English

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p. 285
In re BRUSH.
(Supreme Court, Appellate Division, Second Department.
March 19, 1902.)

Headnote

Elections—Mandamus to Compel Recount—Jurisdiction op Supreme Court.
The supreme court has jurisdiction by mandamus to direct a recanvass of the votes cast for the office of mayor of a city.
Appeal from special term, Westchester county.
Application by Edward F. Brush for mandamus to compel a recount of the ballots cast for the office of mayor of the city of Mt. Vernon. From an order denying a recanvass of certain districts, and from an order denying a recanvass and ordering a recount of other districts, petitioner appeals; Edwin W. Fiske, an intervener, also appealing from the second order.
Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Roger M. Sherman, for appellant Brush.
William N. Dykman (William A. Ferguson and Charles W. Sinnott, on the brief), for appellant and respondent Edwin W. Fiske.

In view of the decision of this court in Feeny’s Case, 48 N. Y. Supp. 866 , affirmed by the court of appeals, 156 N. Y. 36 , 50 N. E. 425 , we think that the supreme court has jurisdiction by mandamus to direct a recanvass of the votes cast for the office of mayor in the several election districts to which this proceeding relates, save with the exception noted below, and that, in view of the circumstances presented by the moving papers herein, this jurisdiction may properly be exercised in this proceeding, provided the requisite parties, some of whom are not present, are brought in as indicated in our opinion in Stiles’ Case, 75 N. Y. Supp. 278 . As to the First district of the First ward, we understand that all parties concede that an alternative writ should issue, and an order will be made therefor.

The order appealed from should be reversed, without costs, and, save with the exception of the First district of the First ward, as noted supra, an order will be made remitting the proceeding to the special term, to the end that application may there be made for a

p. 286
peremptory writ of mandamus, commanding a recanvass of the votes cast therein for the office of mayor at the late election, after the necessary parties have been brought in.

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