[225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J.

[Dec.,

of Richmond county produce before the court, for judicial examination, on the return of the order, all said packages of void, protested and wholly blank ballots filed with him.

Upon the return of the order to show cause the relief asked for by the petitioner was granted. An appeal was then taken by the appellant, who was also a candidate for governor at the same election, to the Appellate Division, second department, which modified the order so that it should read as follows:

"Ordered, that the said motion of Charles S. Whitman for a judicial review of the ballots cast be granted, and it is further

Ordered, that the Clerk of the County of Richmond produce the packages containing the protested, void and blank ballots at the Special Term of the Supreme Court for Richmond County at 10 A. м. on Monday, December 2, 1918, where these proceedings are pending. That upon the result of such judicial review a writ of mandamus may issue to the County Canvassers as the Special Term may direct." Application was made for permission to appeal to this court, which was denied, and the present appeal then taken.

This is a special proceeding instituted for the sole purpose of obtaining a judicial review of the protested, void and wholly blank ballots, to the end that if errors be discovered, the canvassers of Richmond county may be directed to correct same. The order appealed from is in the nature of a subpoena duces tecum requiring the clerk to produce the ballots in order that the court may determine whether the inspectors of election properly canvassed such votes. When the sealed packages containing these ballots are produced by the clerk in obedience to this order, they will be opened in the presence of the court and it will then determine whether errors have been made and if so an order will be made directing that

1918.]

Dissenting opinion, per MCLAUGHLIN, J.

[225 N. Y.]

a mandamus issue, directed not to the clerk of Richmond county, but to the canvassers thereof, that they recanvass these ballots and correct the error which has been made. If errors be not discovered, then the application for the writ will be denied. Such order, either granting or denying the writ, is the final one in this proceeding, since it terminates it.

A majority of the court, however, is of the opinion this is a final order under section 374 of the Election Law. This view, it seems to. me, is erroneous and in effect this court has so held. (Matter of Smith v. Wenzel, 216 N. Y. 421.) Section 374 deals not with the recanvass or recount of any ballots. It relates only to their preservation, and inspection by a candidate. (People ex rel. Brown v. Freisch, 215 N. Y. 356.) It provides that after the last tally sheet and returns are completed and all 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 packages of unused official ballots. The protested, void and wholly blank ballots are never put into the boxes mentioned in section 374. They are put into a sealed package by themselves (Section 369) and are required to be preserved as provided in section 437.

It is true that section 374 provides that 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 this application is not for an inspection of the ballots in the boxes which have been "securely locked and sealed." It is for a recount or recanvass by the court of the "protested, void and wholly blank ballots" put by themselves in a sealed package and delivered to the county clerk.

[225 N Y.] Dissenting opinion, per MCLAUGHLIN, J.

[Dec.,

The object sought to be accomplished by the examination provided for in section 374 is to preserve evidence for use in an action in the nature of quo warranto to try title to public office and "thereby to sustain the underlying principle of the Election Law which prevents the courts from reviewing the ministerial work of inspectors and canvassers in counting and canvassing votes." (Matter of Smith v. Wenzel, supra, p. 425.) No recount or recanvass is provided for or permitted.

Section 381 provides not for an inspection, but for a recount and recanvass by the court of the protested, void and wholly blank ballots. (People ex rel. Brown v. Freisch, supra.) It is a proceeding for the correction of error in the election district statement. This court so held in Matter of Smith v. Wenzel (supra, p. 425) and People ex rel. Brown v. Freisch (supra). The authority given to the court is limited to a review of the protested, void and blank ballots returned by the election officers in the sealed packages. The court has no power to command a recount of all the ballots. (People ex rel. McLaughlin v. Ammenwerth, 197 N. Y. 340.) Its power is limited to a recount of (1) protested ballots; (2) void ballots, and (3) blank ballots. The order appealed from is but a step in the proceeding instituted for the purpose of procuring a recount of such ballots. There cannot be a final order in the proceeding until after the clerk produces these ballots and they have been recounted by the court.

The appeal, therefore, should be dismissed. This view renders it unnecessary to pass upon the other questions discussed in the prevailing opinion.

CHASE, CUDDEBACK and HOGAN, JJ., concur with COLLIN, J.; CRANE, J., concurs in opinion; HIS COCK, Ch. J., and MCLAUGHLIN, J., dissent and vote to dismiss the appeal on opinion by MCLAUGHLIN, J., in which HISCOCK, Ch. J., concurs.

Orders reversed and proceedings dismissed.

1918.]

Statement of case.

[225 N. Y.]

In the Matter of the Application of CHARLES S. WHITMAN, Appellant, for an Examination of Ballots, under Section 374 of the Election Law.

ALFRED E. SMITH, Respondent.

Elections- order that examination of ballots, upon application under section 374 of Election Law, shall take place after completion of canvass, proper.

Upon an application, under section 374 of the Election Law (Cons. Laws, ch. 17), for an order permitting examination of ballots cast at a general election and fixing the time therefor, the court may properly consider facts relating to the canvass of the vote and determine that it is proper, under the circumstances, that the examination should not take place until after the canvass of all votes is completed. Matter of Whitman, 185 App. Div. 228, affirmed.

(Argued December 6, 1918; decided December 10, 1918.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1918, which affirmed an order of Special Term granting a motion for an order permitting examination of ballots cast for the office of governor in the counties of New York and Bronx at the general election held November 5, 1918.

The facts, so far as material, are stated in the opinion.

A. S. Gilbert, Herbert R. Limburg and Emil E. Fuchs for appellant. The applicant is entitled to examine the ballots forthwith as a matter of right. There was no power in the court to postpone the examination until after the issuance of the certificate of election. (Matter of Quinn, 220 N. Y. 623; Matter of Rush, 101 Misc. Rep. 261.)

Abram I. Elkus, James A. Foley, Edgar M. Cullen, John Godfrey Saxe and Joseph M. Proskauer for respondent.

[225 N. Y.]

Opinion, per CRANE, J.

[Dec.,

CRANE, J. This is an application pursuant to section 374 of the Election Law (Cons. Laws, ch. 17) to examine the ballots in the last election cast for governor in the counties of New York and Bronx. Upon the return of an order to show cause and the submission of opposing affidavits an order was made at the Special Term on the 20th day of November, 1918, authorizing the applicant, Charles S. Whitman, to examine all the ballots for said counties upon which his name appeared as a candidate for governor, including the void, protested or defective ballots and the stubs thereof. Among other conditions it was provided that the examination be made in the office of the board of elections in the city of New York or at such other place as the board might designate, and that the examination should commence at nine o'clock on the day following the issuance of the certificate of election as governor by the secretary of state as provided by section 443 of the Election Law and continue thereafter daily without intermission so far as possible to the end that such examination be completed at the earliest possible moment.

Both the applicant and Alfred E. Smith, the opposing party, having appealed to the Appellate Division the order was affirmed by a divided court. Appeal to this court has been taken by Charles S. Whitman, the said Smith not having carried his appeal beyond the Appellate Division. No question, therefore, arises as to whether or not upon the papers presented the application for the examination should have been granted. The only question presented by the applicant appealing pertains to that part of the order fixing the time for the examination on the day following the issuance of the certificate of election by the secretary of state. It is stated in the moving papers dated November 11th, 1918, that the official canvass will not be completed for some six weeks. The order, it is claimed, should have directed the examina