[225 N. Y.] Opinion, per COLLIN, J. [Dec., There is no provision of the section 381 or of the Election Law inconsistent with such conclusion. In enacting the section, the legislature did not intend or contemplate, and the section does not enact, that the candidate, through his mere expressed wish, can move the court to act as a supervising or appellate canvasser of the protested, void or blank ballots, or to enter upon a judicial investigation of those ballots in order to ascertain, for any use or end, what result would ensue. The court can be moved only by allegations of the nature and quality essential, under the settled rules, on the part of an applicant for the issuance of the writ of mandamus as provided by the common law or by the Code of Civil Procedure. (Sections 2067-2090.) It is neither necessary nor useful to attempt to state those rules. They are known to the counsel at the bar. A fundamental rule is that an applicant for the writ of mandamus 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. A writ of mandamus issues only where a clear legal right is made to appear. (People ex rel. McMackin v. Board of Police, N. Y. City, 107 N. Y. 235; People ex rel. Stevens v. Hayt, 66 N. Y. 606.) The function of the courts is to determine actual controversies between litigants. The law is practical and has as its purpose to adjudge, through just and general principles and precedents, investing it with certitude and continuity, the actual disputes growing out of the conduct and transactions of those under its jurisdiction. (Matter of Resolution State Industrial Commission, 224 N. Y. 13; Blanchard v. Blanchard, 201 N. Y. 134.) A suitor to the courts must present a grievance in the contemplation of the law and the facts from which it arises. Another established rule is that the averments presenting those 1918.] Opinion, per COLLIN, J. [225 N. Y.] facts and essential to the issuance of the peremptory writ of mandamus cannot be upon the mere information and belief of the affiant. Our present chief judge, while Justice HISCOCK, in a proceeding like unto this at bar, well said: "The entire tendency of the courts is to require in affidavits which are to be made the basis of important orders and remedies the same kind of direct and legal statements of facts which would be required from a witness upon the stand, or where that cannot be had and statements based upon hearsay must be resorted to, a fortification of those statements by a clear recital of the information upon which they are based," and applied the rule to the case before him. (People ex rel. Watkins v. Board of Canvassers, Oneida Co., 25 Misc. Rep. 444, 448.) This is in accord with our decisions. (Buell v. Van Camp, 119 N. Y. 160; People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., 168 N. Y. 187.) We must, therefore, give no heed to statements of the affidavit of Mr. Whitman made upon mere information and belief. The affidavit, obviously, did not empower the court to grant the order directing the issuance of the writ of mandamus. A detailed analysis of its contents and the expressed application to them of the rules we have stated are unnecessary. The affiant did not aver that the inspectors of elections made an error or omitted any duty. The court was bound, on and for the purpose of the application, to presume that everything was rightfully done by them until some evidence was produced to show the contrary. The general presumption is that an official does no act contrary to his official duty, or omits no act which his official duty requires. (Matter of Marcellus, 165 N. Y. 70.) From the facts stated in the affidavit, no grievance nor injury to Mr. Whitman. arises, there is no wrong shown and, therefore, none to be remedied and no subject-matter upon which the writ [225 N. Y.] Opinion, per COLLIN, J. [Dec., could operate. Section 381 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. If, in the course of the proceedings upon the application for the writ of mandamus under section 381, the production and inspection or investigation of those ballots is deemed by the trial court, or Special Term, aidful or desirable, it can by its order secure those results by virtue of the provision, as follows, of section 437: "The packages of protested, void and wholly blank ballots shall be retained inviolate in the office in which they are filed subject to the order and examination of a court of competent jurisdiction, or to examination 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." It is manifest that the words of section 381, "In the proceedings upon such writ," are the equivalent of the words, "in the proceedings upon the application for such writ." It follows from what we have written that the order of the Special Term was erroneously granted. It should have dismissed the proceeding. We turn now to the order of the Appellate Division. In section 381 there is not the authorization to that court for any one of the provisions or directions of that order. The section authorizes the application for, under proper verified averments, and the 1918.] Opinion, per COLLIN, J. [225 N. Y.] issuance of the writ of mandamus, upon adequate proofs, under facts and a condition expressed by it and which at common law do not warrant the application or issuance. No provision of it empowers the Appellate Division to institute or order, as a proceeding, "a judicial review of the ballots cast," or to order the Special Term to enter upon and conduct such a review or, in the first instance, to order the Special Term to inspect or investigate the ballots or to order the custodian of the ballots to produce them before the Special Term. The proceeding presented to the Appellate Division is converted by its order into a proceeding independent of and unrelated to that provided by section 381. In truth and in fact the order institutes a new proceeding which is wholly without the authorization of that section, and as we have said, independent of and unrelated to the proceeding it provides. Neither the title in the order nor the intention of the court can destroy the reality. We must take cognizance of that which actually exists and must, therefore, regard and hold the order to institute a new and distinct special proceeding. To do otherwise would sanction the injustice of disregarding that which is substantial and actual and of being controlled by mere nomenclature and form. Certain of my brethren, who concur in this opinion, hold the view that a provision of section 374 may be the basis of the order of the Appellate Division. The provision is: "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." While the order, certainly, affords the relief or remedy thus provided, and which Mr. Whitman stated in his affidavit he had not yet succeeded in securing, we do not consider or determine [225 N. Y.] Opinion, per CRANE, J. [Dec., whether or not such view is correct, because the proceeding was expressly and concededly commenced, and from the beginning has been opposed, under section 381. The law does not permit a party or the court to abandon, for another, the theory upon which a proceeding or an action has been commenced and prosecuted. (Racine v. Morris, 201 N. Y. 240; Stephens v. Meriden Britannia Co., 160 N. Y. 178.) The respondent urges that the appeal to this court from the order will not lie, and for the two reasons: the order was unanimously made; it is not a final order. The first reason is answered by the fact that the order is one of modification and is within subdivision 1 of section 190 of the Code of Civil Procedure. The second reason is covered by the fact that the order instituted a proceeding distinct, independent and involving no further or future order. The order of the Appellate Division and that of the Special Term should be reversed and the proceeding dismissed, without costs. CRANE, J. The relator applied to the Supreme Court for a writ of mandamus directing a recanvass of void and blank ballots in certain election districts of Richmond county. An application was made under section 381 of the Election Law. After a hearing the motion was granted and a recanvass of these ballots directed. The Appellate Division modified the order granting the writ and allowed the relator to inspect the ballots and nothing If it should appear that they were erroneously disposed of then it was ordered that a mandamus might issue. It is claimed here that the Appellate Division had no power given it by the Election Law to make such an order and that the mandamus in the first instance granted by the Special Term was improper as not based upon sufficient facts. more. |