to make a new one. People ex rel. Fiske v. Devermann, (1894) 83 Hun 81, 31 N. Y. Supp. 593.

The signing of a statement in blank in advance of the canvass is wrong and irregular, but if, by the consent and action of the canvassers, the statement is filled up with the result agreed upon by all of their number the statement becomes effective. People ex rel. Fiske v. Devermann, (1894) 83 Hun 181, 31 N. Y. Supp. 593.

When inspectors of election have made and signed their statement they are discharged, and cannot afterwards indorse ballots and affix them to the statement. Matter of Kline, (1896) 17 Misc. 672, 40 N. Y. Supp. 600; People ex rel. Bush v. County Canvassers of Ulster, (1892) 66 Hun 265, 21 N. Y. Supp. 279; People ex rel. Gaige v. Reardon, (1886) 40 Hun 425.

Where it appears that ballots were not marked at the time and in the manner required by the statute neither the board of inspectors, nor a member thereof with its permission, can thereafter attach to the statement of the canvass theretofore filed ballots alleged to have been marked for identification. People ex rel. Bush v. County Canvassers, (1892) 66 Hun 265, 21 N. Y. Supp. 279.

Ballots which have been preserved in violation of law and have been out of the possession of the election officer should not thereafter be allowed to be attached to the statement of the canvass. People ex rel. Bush v. County Canvassers, (-1892) 66 Hun 265, 21 N. Y. Supp. 279.

Returns as evidence.

Though the election laws do not, in terms, declare that the return of votes made by the inspectors of election or canvassers shall be evidence in courts of justice, they are so, upon general principles. People ex rel. Stone v. Minck, (1860) 21 N. Y. 539.

The making of returns by inspectors of election is a ministerial act. Morgan v. Quackenbush, (1856) 22 Barb. 721.

Signing returns. - Where inspectors counted the ballots cast and declared the result, but refused to sign the election returns upon the sole ground that fraudulent votes were cast by persons not registered, but who falsely personated registered votes, and who upon being duly sworn gave answers that were "unsatisfactory," a peremptory writ of mandamus should issue to compel such inspectors to sign the returns. People ex rel. Stapleton v. Bell, (1890) 119 N. Y. 175.

If inspectors of election indorse on the return their reasons for not signing the same, they cannot be proceeded against to show cause why they did not do so. In re Election of Alderman of First Ward of City of Buffalo, 49 N. Y. Supp. 241.

Where two inspectors sign the statement of canvass and to refuse to sign, and the questions of fraud raised were never finally determined by legal proceedings, there was no election. People ex rel. Woods v. Crissey, (1883)

91 N. Y. 616, rev'g 28 Hun 446.

Where a copy of a statement of inspectors of election certifies a different number of votes than there were in the tally sheet they must correct the same. Matter of Stewart, (1897) 24 App. Div. 201, 48 N. Y. Supp. 957.

The fact that a board of canvassers in an election district stated on one page of the return that "the whole number of questions submitted' ballots actually voted were none," while upon another page of the returns they correctly certified the number of votes cast upon the question, does not render it necessary to exclude such votes from the canvass where it appears that the word "none "9 was inserted by the inspectors under misapprehension. People ex rel. Williams v. Board of Canvassers, (1905) 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.

Mandamus to compel compliance with this section. Where it appears that the board of canvassers omitted to indorse their reasons upon the back of ballots rejected as void, and omitted to place these ballots in a sealed package and file the same with the original statement of the canvassers, and that they improperly replaced these void ballots with the others in the ballot box, any person aggrieved or interested would be entitled to a writ of mandamus, without seeking authority therefor in the Election Law, compelling the board of canvassers to convene and do what they omitted to

do. People ex rel. Maxim v. Ward (1901), 62 App. Div. 531, 71 N. Y. Supp. 76. Although a proceeding under this section in which the facts whether objec tion was made to certain marked ballots at the time of canvass, etc., are disputed, might call for the issuance of an alternative writ of mandamus, yet relief cannot be granted upon application for peremptory writ. People ex rel. Bush v. County Canvassers, (1892), 66 Hun, 265, 21 N. Y. Supp. 279. Failure to file returns and to seal and deliver ballot box. Where due opportunity has been given to electors to vote for or against local option and the votes have been cast and canvassed, the result declared, and the returns made by the ballot clerks, the failure of the inspectors to make and file the returns and to seal and deliver the ballot box to the proper custodian does not invalidate the election. Matter of Norton (1912), 152 App. Div. 628.

§ 374. Preservation of ballots.

After the last tally sheets and returns are completed, and all the stubs and ballots, except the protested, void and wholly blank ballots, are replaced in the boxes from which they were taken, each box shall be securely locked and sealed, and deposited, by an inspector designated for that purpose, with the officer or board furnishing it, together with the separate sealed package of unused official ballots. The boxes and packages so deposited shall be preserved inviolate for six months after the election, except that they may be opened and their contents examined upon the order of any court of competent jurisdiction or may be opened by direction of a committee of the senate or assembly to investigate and report upon contested elections of members of the legislature voted for at such election and their contents examined by such committee in the presence of the officer having the custody of such boxes. Unless ordered to be preserved by such a court, or unless an examination by such a committee be pending, they shall be opened and their contents destroyed after six months, except, that in a year in which a president of the United States is to be elected, in counties in which no contest has been noted, such boxes may be opened and their contents destroyed after four months and the boxes prepared for use at the primary election as provided in section seventy-nine of this chapter. The protested, void and wholly blank ballots shall be preserved as provided in section four hundred and thirty-seven of this chapter. Any candidate shall be entitled as of right to an examination in person or by authorized agents of any ballots upon which his name lawfully appeared as that of a candidate; but the court shall prescribe such conditions as of notice to other candidates or otherwise as it shall deem necessary and proper.

Derivation: Election Law, pt. of § 111. Amended by L. 1913, ch. 821; L. 1916, chs. 31, 537, in effect May 15, 1916. The purpose of the statute requiring a preservation of ballots is that they may be used as evidence upon a criminal prosecution or in an action to determine which candidate was elected to office. People v. McClellan (1908), 191 N. Y. 341, rev'g 124 App. Div. 215, 108 N. Y. Supp. 765. 1

This section does not confer authority upon the county court to judicially investigate the manner in which the right of suffrage has been exercised or to order a recount or recanvass of the ballots cast at an election by a board of canvassers before a referee. Matter of Tompkins (1897), 23 App. Div. 224, 48 N. Y. Supp. 737.

An order directing the opening of a ballot box and the inspection of the ballots will not be granted on the application of one of the candidates, upon a claim that by mistake or otherwise the figures shown by the count of the split ballots were transposed on the statement made by the inspectors. Matter of Election of Members of Assembly for First District of Erie County (1896), 18 Misc. 391, 77, N. Y. St. Rep. 710, 43 N. Y. Supp. 710.

Where no judicial proceedings are pending and it does not appear that any will be brought, the court is without power to grant an order under section 374 to open ballot boxes containing ballots not void or protested upon the application of parties who allowed the time within which they might have applied for a mandamus under section 381 to expire. Matter of Ulrich (1910), 67 Misc. 196.

This section authorizes the court to open ballot boxes and permits their contents to be examined, but it does not confer the power to direct a recount, and, therefore, mandamus will not lie to compel it. People ex rel. March v. Beam (1907), 188 N. Y. 266, mod'f'g 117 App. Div. 374, 103 N. Y. Supp. 818. Where inspectors of a village election, in spite of written and oral protests, receive ballots which are not only unofficial, but objected to as marked for identification and count them, and then cause them to be locked and sealed up with the valid ballots, their action is in violation of this section, and the Supreme Court has the power and jurisdiction to command that the ballot box containing these void, unofficial and protested ballots be opened and those ballots removed and placed in a package and disposed of according to the commands of said section. People ex rel. March v. Beam (1907), 188 N. Y. 266, mod'f'g 117 App. Div. 374, 103 N. Y. Supp. 818.

This section confers no power upon the court or judge to order a recount of the ballots, but has for its purpose the preservation of the ballots which have been counted as valid by the election board, for use in judicial or legislative proceedings as evidence upon which to determine the title of an office assumed. Matter of Hearst v. Woelper (1905), 183 N. Y. 274, rev'g 110 App. Div. 346, 96 N. Y. Supp. 341, mod'f'g 48 Misc. 453, 96 N. Y. Supp. 119.

66

If the ballots marked "protested," "wholly void" or wholly blank" have been deposited in the ballot box instead of being placed in a separate package, the court may determine that such ballots were improperly canvassed by the board of inspectors and order the error corrected. The correction should be made by the board of inspectors, and not by the board of elections or the county board of canvassers. People ex rel. Cantor v. County Bd. of Canvassers (1914), 165 App. Div. 142, 150 N. Y. Supp. 480.

Authority conferred limited. While the court may permit a ballot box to be opened and the ballots upon which the name of the applicant condidate appears to be examined, the authority conferred is limited to an examination of the ballots. Jurisdiction is not granted to direct a recount or recanvass. People ex rel. Brown v. Freisch (1915), 215 N. Y. 356, reported below, 168 App. Div. 370, 153 N. Y. Supp. 277.

Any candidate voted for at a general election is entitled to an examination as of right of any ballots upon which his name lawfully appears as that of a candidate, whether the validity of the controversy is in question or not. Matter of Quinn (1917), 220 N. Y. aff'g 175 App. Div. 681, 160 N. Y. Supp. 867.

A candidate for a town office is entitled to an examination. And when the time set for the inspection has expired, the opposing candidate is entitled to another notice. Matter of Quinn (1916), 175 App. Div. 681, 160 N. Y. Supp. 867, 220 N. Y.

Quo warranto to determine title. to office.- Where, in an action of quo warranto to determine a title of an office, the plaintiff serves a bill of particulars pursuant to an order directing the attorney-general to specify the particulars of the errors, miscounts and illegal acts alleged in the complaint, which stated some of the particulars required, and alleged that further particulars could not be had as the ballots cast in the election in question were retained in boxes in the custody of the board of elections, under lock and key, and that no person had been permitted to open and examine their contents, the plaintiff could not be precluded from giving evidence of fraud, error, omission or mistake except in the election districts specified in the bill of particulars. People v. McClellan (1908), 191 N. Y. 341, rev'g 124 App. Div. 215, 108 N. Y. Supp. 765.

In an action of quo warranto to determine the title of an office, any ballot box may be opened and its contents recounted without preliminary evidence tending to show some misconduct, error, omission or fraud in counting or canvassing of the votes or in the returns. People v. McClellan (1908), 191 N. Y. 341, rev'g 124 App. Div. 215, 108 N. Y. Supp. 765.

Sealing boxes.-The provision of L. 1872, ch. 575, an act to regulate elections in the city of Brookyln, that after the canvass is completed the ballots are to be returned to the ballot boxes, and said boxes were to be "securely sealed up by the canvassers," contemplates that the boxes shall be so sealed that they cannot be opened without breaking the seal. Where the inspectors sealed the apertures of the boxes through which the ballots were inserted, and the canvassers did not remove these seals but delivered the boxes to the police department without further sealing, it was held not in compliance with the act.

But where it is proved satisfactorily that the boxes had been kept "undisturbed and inviolate" the omission of the canvassers to seal up the boxes as contemplated did not render the ballots inadmissible in evidence. People ex rel. Dailey v. Livingston (1879), 79 N. Y. 279, rev'g 18 Hun, 59.

As to effect of failure to seal and deliver ballot box upon validity of local option election, see Matter of Norton (1912), 152 App. Div. 628.

Custody of boxes.-The court will not order ballot boxes to be taken from their legally designated custodians, nor guards of such boxes to be appointed or continued without proof of facts affording reasonable grounds for the fear that they will be tampered with or that they are exposed to the danger of loss. People v. McClellan (1907), 52 Misc. 614, 103 N. Y. Supp. 827, aff'd, 118 App. Div. 177, 103 N. Y. Supp 146, aff'd, 188 N. Y. 618.

Preservation of boxes after statutory time.- Although this section provides for the destruction of ballots after the expiration of six months, yet, when new ballot boxes have been acquired and the controversy is opened as to the legality of an election, an order requiring the preservation of the ballots after the statutory time will not be vacated. Matter of Hearst (1907), 117 App. Div. 240, 102 N. Y. Supp. 47.

An application to relieve from an order preserving ballots after the expiration of six months should be made by the board of elections against whom it operates rather than by the office holder whose election is contested. Matter of Hearst (1907), 117 App. Div. 240, 102 N. Y. Supp. 47.

This section has no application to voting machines, and is not made applicable by section 417, which merely declares that other articles of the Election Law, not applicable to voting machines generally, shall apply to voting by such machines. This provision is not broad enough to warrant the granting of an order for the examination of voting machines analogous to an order for the examination of ballot boxes under this section. Matter of Thomas (1915), 216 N. Y. 426, rev❜g 171 App. Div. 977; see 92 Misc. 483, 156 N. Y. Supp. 43.

§ 375. Proclamation of result.

Upon the completion of such canvass and of the statements of the result thereof, the chairman of the board of inspectors shall make public oral proclamation of the whole number of votes cast at such election at such polling place for all candidates for each office; upon each proposed contstitutional amendment or other question r proposition, if any, voted upon at such election; the whole number of votes given for each person, with the title of the office for which he was named on the ballot; and the whole number of votes given respectively for and against each proposed constitutional amendment or other question or proposition, if any, so submitted.

Derivation: Election Law, pt. of § 112.

Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

Forms.Form of proclamation of result. See Forms (part 12, post).

§ 376. Sealing statements.

Each statement of canvass shall then be securely sealed with sealing wax in separate envelopes properly indorsed on the outside thereof by the inspectors, and shall be kept inviolate by the officers or board with whom they are filed until delivered, together with the packages of protested, void and wholly blank ballots, to the county or city board of canvassers.

Derivation: Election Law, pt. of § 112.

Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

Sealing statements. The fact that the original statements canvassed from a number of election districts were not safely sealed with sealing wax does not invalidate the submission of a question at an election, where it appears that the omission to comply strictly with the requirements of the statute was unintentional and that the irregularities did not result in the perpetration of any fraud. People ex rel. Williams v. Board of Canvassers (1905), 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.