People ex rel. Ranton v. Doyle

— In People ex rel. Stapleton v. Bell, 119 N. Y. 175 ; 28 St. Rep. 960 , it was held that inspectors of election are ministerial officers. In People ex rel. Lewis v. Deverman, 83 Hun, 181 ; 64 St. Rep. 149 , it was held that the granting of an alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal. Following the ease last cited, we think that the appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should be dismissed.

2. The defendant James Dojde also appeals from the order made on the 18th of February, 1895, denying a motion made for an order setting aside and vacating the order, granted at special term on the 31st day of January, 1895, ordering that a writ of mandamus issue out of and under the seal of this court, and for an order setting aside and vacating the writ of mandamus. Upon that motion the defendant Doyle offered to stipulate that the return and certificate of the canvass of votes be corrected by. inserting the word “received” between the words “Doyle” and “sixty-six,” between the words “Ranton” and “fifty-four,” between the words “Maloney” and “four,” between the words “Dee” and “eighty-five,” in said certificate of canvass of votes. The court refused to consider the stipulation, for the reason that the motion was made on papers of relator only. From the affidavits found in "the appeal book it is apparent that William J. Ranton was regularly nominated as a candidate for the office of alderman in the First ward of the city of Syracuse, to be voted for at the special election to be held in that ward on January 29, 1895 ; and it also appears that the defendant James Doyle was a candidate for the same office. According to the return filed in the city clerk’s office at the close of the election, it shows the election of the defendant Doyle to the office of aldermen of said ward over the relator by a plurality of only one vote. The return from the Fourth district are irregular, in that they do not show in any form that any person received any votes whatever. From the affidavits it also appears that at the election a ballot was cast bearing the name of the relator, William J. Ranton, upon the face, and upon its back a paster, of different color from the ballot, which paster bore the name of the' defendant' James Doyle. It also appears that, when the ballot was opened by the inspectors on the canvass of the

Section 114 of chapter 680. of the Laws of 1892 contains a provision in relation to marked ballots, requiring the inspectors or canvassers to write on the back of such ballot, “Objected to because marked for indentification,” or words, in substance, to that effect, and sign their names thereto, and attach each of such ballots to the written statement of the result of the canvass. Section 115 of the same act provides that the inspectors shall make and sign a written statement showing, among other things, the whole number of ballots received for each office, and the whole number cast for each person for such office, and the whole number of ballots objected to because marked for identification,- written out at length in words, and at the end thereto a certificate, signed by the inspectors, to the effect that the statement is in all respects correct. It is quite apparent that the inspectors have not complied with the statutory provisions, and we are of the opinion that the defendant Doyle had not the power, by stipulation, to cause the needed amendments made to the statement of the canvassers.

We are of the opinion that the action of the special term was correct, and that its order should be affirmed. The appeal from the order directing the issue of an alternative writ of mandamus is dismissed. Order refusing to set aside the writ affirmed, with $10 costs and dis*busemements.

All concur.