by a committee of the senate or assembly to investigate and report on a contested election of member of the legislature where such ballots were cast at such election, and may be destroyed at the end of six months from the time of the completion of such canvass, unless otherwise ordered by a court of competent jurisdiction or unless such committee examination be pending.

Derivation: Election Law, § 135, as amended by L. 1897, ch. 379, § 23. Amended by L. 1913, ch. 821; L. 1914, ch. 244; L. 1916, ch. 537, in effect May 15, 1916.

The statement returned by a board of county canvassers to the state board may not lawfully contain anything save the whole number of votes given in the county, the names of the candidates, and the number of votes given for each, and this must be made up solely from the original statements of the canvass returned by the inspectors in each and all of the election districts of the county. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

A board of county canvassers has no authority to transmit with their official returns any paper attacking the validity of the election, and, if such paper is so transmitted, the state board has no power to consider it. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

It was held in People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643, that where the county clerk, acting as secretary to the board of county canvassers, refused to sign and attest the statements of canvass prepared by them, one of their number could be appointed by the board to perform such acts. But it should be noticed that the present law does not require the county clerk to sign the statements. The signatures of a majority of the board of canvassers only is necessary.

The duty of a county clerk as secretary to the board of county canvassers is purely ministerial, and he cannot assume to sit in judgment upon the action of that body. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643.

Congressional election.- The Supreme Court may, on allegations of the candidate defeated in a close congressional district to the effect that ballots cast for him were erroneously thrown out by the election inspectors, order an inspection of the void and protested ballots, although no congressional contest of the elections has been begun. Matter of Van Cott, (1901) 34 Misc. 411, 69 N. Y. Supp. 934.

Separate return of votes cast for candidates of political parties. The court cannot compel a county board of canvassers to make its return so as to show separately the number of votes cast for the office of governor in the column and under the emblem of a political party whose candidate for the office of governor was the same as that of another political party, in order that it may appear from the returns filed in the office of the secretary of state whether or not such political party polled the required number of votes for state officers to entitle it to make its nominations by convention during the next year. There is no provision in the statute authorizing such a separate return. People ex rel. Boies v. Board of Canvassers, (1903) 79 App. Div. 514, 80 N. Y. Supp. 25.

City officers, canvass of votes for. Report of Atty.-Gen., (1897) 314, 317.

§ 438. Decisions of county boards as to persons elected.

Upon the completion of the statements required by the preceding section the board of canvassers for each county shall determine what person has by the greatest number of votes been so elected to each office of member of assembly to be filled by the voters of each county for which they are county canvassers if constituting one assembly district, or in each assembly district therein, if there be more than one, and each person elected by the greatest number of votes to each county office of such county to be filled at such election. The board of elections of the county of Hamilton shall forthwith transmit to the board of elections of the county of Fulton a certified copy of the statements so filed and recorded in its office of the county board of canvassers of Hamilton county as to all the votes so cast in Hamilton county for all the candidates and for each of the candidates for the office of member of assembly of the assembly district composed of Fulton and Hamilton counties; and the board of elections of Fulton county shall forthwith deliver the same to the Fulton county board of canvassers, who shall from such certified сору, and from their own statement as to the votes so cast for such office in Fulton county, determine what person was at such election elected by the greatest number of votes to such office. Such board of each county shall determine whether any proposition or question submitted to the voters of such county only has by the greatest number of votes been adopted or rejected.

. All such determinations shall be reduced to writing and signed by the members of such board, or a majority of them, and filed and recorded in the office of the board of elections of such county, except in the counties wholly within the city of New York, and in such counties the county clerk, who or which shall each cause a copy thereof, and of the statement filed and recorded in his or its office, upon which such determination was based, to be published once in each of the newspapers designated to publish election notices and the official canvass; provided, however, that the statement of canvass to be published shall not give the vote by election. districts but shall contain only the total vote for a person, or the total vote for and the total vote against a constitutional amendment or other proposition or question, cast within the county, or within the portion thereof if any in which an office is filled or proposition or question is decided by the voters if the canvass of the vote.

thereon devolves upon the county board of canvassers. If a candidate for governor or member of assembly was nominated by two or more parties or independent bodies, the published statement shall. show the number separately stated of votes cast for him as the candidate of each such party or independent body. The board of elections of each county, except in the counties wholly within the city of New York, and in such counties the county clerk, shall prepare as many certified copies of each certificate of the determination of the county board of canvassers of such county as there are persons declared elected in such certificate, and shall, without delay, transmit such copies to the persons therein declared to be elected, respectively.

Derivation: Election Law, § 136, as amended by L. 1897, ch. 379, § 24; L. 1905, ch. 643, § 23.

Amended by L. 1916, ch. 537; L. 1921, ch. 392, in effect April 30, 1921. Canvass of votes cast for persons of similar names. A board of county canvassers cannot determine that the votes cast for several somewhat similar names were all intended for the same person, and from the result thus reached issue a certificate of election to him, but they should certify separately the separate names and issue the certificate of election to the one entitled thereto on the face of the return. People ex rel. Kathan v. County Board of Canvassers, (1902) 75 App. Div. 110, 77 N. Y. Supp. 620.

§ 439. Transmission of statements of county boards to secretary

of state and board of elections.

Upon the filing in the office of the county clerk or board of elections of a statement of the county board of canvassers as to the votes cast for candidates for the offices of electors of president and vice-president, or as to the votes cast for candidates for state officers, except members of assembly, and for representatives in congress, or as to the votes cast on any proposed constitutional amendment or other proposition or question submitted to all the voters of the state, such county clerk or board of elections shall forthwith make two certified copies of each such statement, and,

within five days after the filing thereof in his or its office, transmit by mail one of such copies to the secretary of state, and one to the comptroller of the state. The comptroller shall forthwith upon the receipt thereof deliver such certified copy to the secretary of state. If any certified copy shall not be received by the secretary of state on or before the last day of November next after a general election, or within twenty days after a special election, he shall dispatch a special messenger to obtain such certified copy from the county clerk or board of elections required to transmit the same, and such county clerk or board of elections shall immediately upon demand of such messenger at his or its office make and deliver a certified copy to such messenger who shall, as soon as practicable, deliver it to the secretary of state.

The board of elections of each county, except a county wholly within the city of New York, and in any such county the county clerk, shall transmit to the secretary of state within twenty days after a general election, and within ten days after a special election, a list of the names and residences of all persons determined by the board of county canvassers of such county to be elected member of assembly, or to any county office; and on or before the fifteenth day of December in each year a certified tabulated statement of the official canvass of the votes cast in each such county by election districts for candidates for governor, lieutenant-governor, secretary of state, comptroller, treasurer, attorney-general, state engineer and surveyor and United States senator, or any proposed constitutional amendment or other proposition, at the last preceding general election, to include, in the case of a candidate for governor who was nominated by two or more parties or independent bodies, a separate statement of the number of votes cast for him as the candidate of each party or independent body by which he was nominated.

Upon the filing in the office of the county clerk of a county wholly or partly within the city of New York of a statement of the county board of canvassers as to the votes cast for candidates

for a city office within such city, such county clerk shall forthwith make a certified copy of each such statement and, within five days after the filing thereof in his office, deliver in a sealed envelope such certified copy to the board of elections of the city of New York; on or before the fifteenth day of December in any year in which there shall have been an election for a city office for which votes were cast in a county within the city of New York the county clerk thereof shall file with the city clerk of such city a certified copy of the official canvass of the votes cast in such county or portion thereof by election districts for such city office, and such canvass by election districts shall, as soon as possible thereafter, be published in the City Record.

Derivation: Election Law, § 137, as amended by L. 1897, ch. 379, § 25; L. 1900, ch. 732, § 1; L. 1901, ch. 95, § 20; L. 1905, ch. 643, § 24.

Amended by L. 1914, ch. 244; L. 1916, ch. 537, in effect May 15, 1916.

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

§ 440. Organization and duties of board of canvassers of the city of New York.

The board of elections of the city of New York shall be the board of canvassers of the city of New York of the statements of the county boards of canvassers of the counties within such city of the votes cast in such city or any portion thereof for a city office or upon any proposition or question upon which only voters of such city were entitled to vote. The members of the board of elections shall meet at the usual place for holding their regular meeting on the first Monday in December succeeding a general election for a city office within such city and within thirty days after a special election, and shall organize by selecting one of the members as chairman. The secretary of the board of elections of the city of New York shall be the secretary of the board so organized, or if he be unable to serve the board may appoint a chief clerk to be such secretary. The secretary shall thereupon administer to the chairman the constitutional oath of office and the chairman shall administer such oath to the members of such board and the secretary thereof.

As soon as such board shall have organized the secretary shall deliver to such board the certified copies of the statements of the county board of canvassers of each county wholly or partly within such city of the votes cast for candidates for city office within such city and upon any proposition or question, if any, submitted to the voters of such city only, and the said board shall proceed to canvass such statements. If a certified copy of any statement of any county board