People ex rel. Putzel v. Simonson — 40 N.Y. St. Rep. 682

Majority

p. 682

The People ex rel. Charles Putzel, Resp’t, v. John Simonson et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Election—Mandamus—Laws 1890, chap. 563, § 15.

Section 15 of chap. 563, Laws 1890, does not authorize the court to compel inspectors of election to count votes which they have previously refused to count, although they may have acted erroneously. The remedy in such case is by proceedings under the statute for a new election.

Appeal from order granting writ of mandamus.

C. T. Haviland, for app’lts; A. L. Sessions, for resp’t.

We do not think that § 15 of chap. 563 of the Laws of 1890 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 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 twenty dollars costs.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.