§ 377. Delivery and filing of papers relating to the election; general provisions.

If the election be other than an election of town, city, village or school officers, held at a different time from a general election, the chairman of the board of inspectors of each election district, except in the city of New York shall forthwith upon the completion of the triplicate statement of the result, deliver one set of returns to the supervisor of the town in which the election district, if outside of a city, is situated, and if in a city, to one of the supervisors of said city. If there be no supervisor, or if he be absent or unable to attend the meeting of the county board of canvassers, it shall be forthwith delivered to an assessor of such town or city. One set of returns with tally sheets annexed, together with the poll books of the election at an election at which the poll books used are separate from the register shall be forthwith filed by such inspectors, or by one of them deputed for that purpose, with the town clerk of such town, or the city clerk of such city, as the case may be. The package of protested, void and wholly blank ballots and the third set of returns with tally sheets annexed shall, within twenty-four hours after the completion of such canvass, be filed by the chairman of the board of inspectors, with the board of elections of the county in which the election district is situated. Each poll book containing signatures of electors required by this chapter to sign the poll book, if such book be separate from the register, and all "identification statements for election day" received thereat shall within forty-eight hours after the close of the canvass be filed in person or by mail by the poll clerk of each election district having charge of such book, with the state superintendent of elections in such one of his offices as he may in writing designate.

Derivation: Election Law, § 113, subd. 1, as amended by L. 1897, ch. 379, § 20; L. 1905, ch. 165, § 1; ch. 643, § 20; and L. 1908, ch. 464, § 1.

Amended by L. 1911, ch. 649; L. 1913, ch. 821; L. 1916, eh. 537; L. 1919, ch. 504, in effect Oct. 1, 1919.

Cross-references.-Destruction or delay of election returns. Penal Law, § 1429 (part 5, post).

When filing a nullity. After inspectors of election have filed their statement, as required by law, a paper by part of the board of inspectors, made and filed with the city clerk two days later, is a nullity. People ex rel. Brennan v. City of Kingston (1891), 59 Hun 617, 13 N. Y. Supp. 215; Bren

nan v. Beck, 59 Hun, 617, 13 N. Y. Supp. 216; Halloran v. Carter, 59 Hun, 617, 35 N. Y. St. Rep. 884, 13 N. Y. Supp. 214.

When failure to file in time does not invalidate election. The fact that the election returns from a number of election districts were not filed with the county clerk within twenty-four hours after the completion of the canvass, does not invalidate the election, where it appears that such failure was due in one instance to the fact that the inspector who carried the returns was unable to reach the county clerk's office within the prescribed time and in the other instance to the fact that the election returns originally attempted to be filed were found to be defective. 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 will lie to compel inspectors of election to perform their official duties in relation to the making and filing of true copies of the original statement of canvass. Gleason v. Blanc, 14 Misc. 620, 36 N. Y. Supp. 938.! No duty rests upon two of the members of a board of canvassers to withdraw a certificate of canvass improperly made and filed by them, which certificate was made subsequently to the close of the canvass after a valid certificate of canvass had been made and filed. People ex rel. Fiske v. Deverman (1894), 83 Hun, 181, 31 N. Y. Supp. 593.

§ 378. Delivery and filing of papers in the city of New York.

In the city of New York the package of protested, void and wholly blank ballots and one set of returns with tally sheets annexed, together with one of the poll books, shall be filed by the chairman of the board of inspectors within twenty-four hours after the completion of the canvass with the county clerk of the county within which the election district is located. One set of returns with tally sheets annexed and the other poll book shall be filed within such time with the board of elections or with the chief clerk of the branch office of the board of elections, as the case may be, in the borough within which the election district is located, by an inspector designated by the board of inspectors for that duty, and the third set of returns with the city clerk, by an inspector designated by the board of inspectors for that duty.

In election districts in the city of New York, the boards of inspectors of election must, at the same time that they make and sign the aforesaid returns, make a certified copy of so much thereof as relates to any candidate for member of assembly, senator, or representative in congress, voted for both in said election district and in any part of any county not within the city of New York, and such certified copy must, within twenty-four hours after the completion of the canvass by the inspectors, be filed by the chair

man of the board of inspectors with the clerk of the county outside of the city of New York in which such officers or any of them are voted for at such election.

Derivation: Election Law, § 113, subd. 2, as amended by L. 1897, ch. 379, § 20; L. 1901, ch. 95, § 19.

Amended by L. 1911, chs. 274 and 649; and L. 1913, ch. 821, in effect Dec. 17,

1913.

Consolidators' Note. The requirement that the police shall return the package of stubs, etc., in New York city to the "bureau of elections of the borough" is changed to "board of elections or to the chief clerk of the branch office of the board of elections, as the case may be, in the borough," the former superintendent and bureau of elections, with branch bureaus, in the police department, having been succeeded in 1901 by the board of elections and its branches.

§ 379. Additional requirements in the metropolitan elections district.

(Repealed by L. 1911, ch. 649, in effect July 13, 1911.)

§ 380. Delivery and filing of papers in the county of Erie.

In the county of Erie one return with tally sheets annexed shall be filed forthwith by one inspector deputed for that purpose, with the clerk of the town, or the clerk of the city of Buffalo, or the clerk of the city of Tonawanda, as the case may be, and one return with the clerk of the county of Erie. The package of protested, void and wholly blank ballots and the third return with tally sheets annexed shall, within twenty-four hours after the completion of such canvass, be filed by the chairman of each board of inspectors with the commissioner of elections. All poll lists for the various election districts in the city of Buffalo shall be filed with the commissioner of elections, and those for the city of Tonawanda with the clerk of such city, and those for the towns in Erie county with the town clerks thereof.

Derivation: Election Law, § 113, subd. 4, as added by L. 1905, ch. 643, § 21. Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

§ 381. Judicial investigation of ballots.

If any statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were protested or were canvassed as wholly blank or void, a writ of mandamus may, upon the application of any candidate voted for at such election in such district, within twenty days

thereafter, issue out of the supreme court to the board or body of canvassers, if any, of the return of the inspectors of such election district, and otherwise to the inspectors of election making such statement, requiring a recanvass of such ballots. If the court shall, in the proceedings upon such writ, determine that any such ballot was improperly canvassed, it shall order the error to be corrected. Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings. Derivation: Election Law, § 114.

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

Cross-references.- See cases cited in notes to Election Law, §§ 358 and 368. The authority conferred is confined to a review of the protested, void and blank ballots returned in the sealed package. The court may not order the election officers to open a box of voted ballots, months after an election, examine the ballots therein, and without any marks of identification appearing on said ballots, aided only by a recollection of the situation on the night of election day, endeavor to select the identical ballots declared void at the time of the canvass. Where spoiled or canceled ballots are found in envelopes, the court may order them marked as such and placed in the boxes where they properly belong. Peo. ex rel. Brown v. Freisch (1915), 215 N. Y. 356, reported below 168 App. Div. 370, 153 N. Y. Supp. 277.

Certiorari does not lie to review the acts of an election board in receiving votes and announcing the result, as such acts are not judicial in character. People v. Austin (1897), 20 App. Div. 1, 46 N. Y. Supp. 526.

A ballot box should not be ordered opened except for the purpose of aiding a criminal prosecution or in a civil action or proceeding where the court may make a decision binding upon the parties and the public. Matter of Election of Members of Assembly for First District, Erie County (1896), 18 Misc. 391, 77 N. Y. St. Rep. 710, 43 N. Y. Supp. 710.

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 in the statement made by the inspectors. Matter of Election of Members of Assembly for First District, 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.

Mandamus. This section empowers the court, under the requisite allegations in behalf of a candidate voted for at an election and sufficient proof, to require, through a writ of mandamus, the board of canvassers of the return of the inspectors of election, to recanvass and correct the errors in the original canvass of the protested, or void, or blank ballots. The writ of mandamus so authorized is the ordinary writ and the ordinary and established rules and procedure are applicable to it. The applicant must, by written and verified allegations, present to the court facts which, if true and unavoided by the defensive facts, prove that he is under a grievance or injury which the writ would remedy and that he is entitled to that remedy, and the averments presenting those facts and essential to the issuance of the peremptory writ cannot be upon mere information and belief of the affiant. Hence an affidavit, in a proceeding under this section, which does not aver that the inspectors of election made an error or omitted any duty, is insufficient to empower the court to issue a writ of mandamus. This section authorizes exclusively the application for the writ, and the order for and its issuance in accordance with

the established rules relating to that remedy. It does not contain any provision empowering the court to order the custodian of the protested, void or blank ballots to produce those ballots to the court for any purpose. And the court cannot by the effect of any of its provisions direct the production of them. Matter of Whitman (1918), 225 N. Y. 1.

A writ of mandamus directing the inspectors of election of a town meeting where local option questions under the Liquor Tax Law were voted upon to count certain ballots which were by them returned as void is a proceeding that may not be entertained by virtue of any inherent powers of the court, but must find authorization and support in the express provisions of some statute or statutes. Matter of Tamney v. Atkins (1913), 209 N. Y. 202.

An alternative writ of mandamus should be procured so that disputed facts can be settled before the peremptory writ issues. People ex rel. Hasbrouck V. Supervisors (1892), 135 N. Y. 522.

There is no occasion to issue an alternative writ of mandamus, where, after the proof is all in, it appears that there is no material dispute of fact and that the right of the applicant, if he has any, depends merely upon the decision of question of law. People ex rel. Bantell v. Morgan (1899), 20 App. Div. 48, 46 N. Y. Supp. 898.

The alternative writ of mandamus delegates to the board of inspectors the whole matter of recanvassing the ballots, with no specific directions as to how such recanvass is to be conducted, beyond the direction that they are to follow the language of the statute. People ex rel. Phillips v. Sutherland (1896), 9 App. Div. 313, 41 N. Y. Supp. 181.

A peremptory writ of mandamus lies to compel the counting of votes for an office omitted to be named upon the official ballot, when written upon the ballot. People ex rel. Goring v. President (1894), 144 N. Y. 616, aff'g 9 Misc. 246, 30 N. Y. Supp. 265.

A peremptory mandamus will not be granted where the answering affidavits raise an issue as to material facts alleged in the petition. Matter of Kline (1896), 17 Misc. 672, 40 N. Y. Supp. 600.

A peremptory writ of mandamus will not be granted to compel a recount of ballots cast at a general election rejected as void and those protested as marked for identification, where the opposing affidavits allege that packages containing such ballots were found in the county clerk's office in a place to which all persons had an easy access; that none of such packages were indorsed; that some of them were sealed and others unsealed; that many ballots were not indorsed as required by the Election Law, and that many had actually been counted for the petitioner. People ex rel. Perry v. Borad of Canvassers (1903), 88 App. Div. 185, 84 N. Y. Supp. 406.

It seems, however, that the court would have power to issue a writ of mandamus to compel the various election officials to perform, with respect to the ballots in question, the duties imposed upon them by the Election Law. People ex rel. Perry v. Board of Canvassers (1903), 88 App. Div. 185, 84 N. Y. Supp. 406.

Application for mandamus must show that violation of inspector was prejudicial. People ex rel. Larkin v. Palmer (1899), 27 Misc. 569, 59 N. Y. Supp. 62. Mandamus will not be granted on affidavits on information and belief, which do not state source of information or grounds of belief. People ex rel. Watkins v. Bd. of Canvassers of Oneida (1898), 25 Misc. 444, 55 N. Y. Supp. 712. The court must determine in the mandamus proceeding whether, under the circumstances of the particular case, there has been such a substantial compliance with the statute as will enable the candidate complaining of marked ballots to maintain the proceeding. Inspectors cannot defeat the mandamus proceeding by failing to write their names on the ballots or to make the required statement. People ex rel. Hasbrouck v. Supervisors (1892), 135 N. Y.

522.

The right of a claimant to an office cannot be tried by mandamus where the person claimed to have been elected illegally is actually in possession of the