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In the Court of Appeals of New York.



[Irregularities will not vitiate the poll.]

Where the pleadings raise a question of fraud in relation to the acts of a board of election officers, and the evidence goes only to show an irregularity, without fraudulent intent, the court is not bound to submit it to the jury as an open question.

Fraud, when imputed to the acts of inspectors of election, implies an illegal and wrongful act, purposely committed.

An irregularity in conducting an election, which does not deprive a legal voter of his vote, nor admit a disqualified person to vote, if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, may be overlooked in a quo warranto.

The county-board has no right to reject a return, which is regular on its face, and delivered to the proper officer, within the time prescribed by law. The hour of closing the polls is directory, not imperative.

Appeal from the Supreme Court, at a general term, in the sixth judicial district. This was an action in the nature of a quo warranto, at the relation of Benjamin Welch, Jr., to try the right of the defendant to the office of state treasurer, to which he had been returned, by the board of state canvassers, as duly elected, at the election held in November 1851. The case was tried at Tompkins circuit in March 1852, when a verdict was rendered in favor of the plaintiffs, upon which judgment was entered, and this judgment was affirmed at the general term. The case in the supreme court is reported in 11 Barb. 259.

J. C. Spencer, for the appellant.

J. A. Collier, for the respondent.

WILLARD, J., delivered the opinion of the court. This action was commenced by the attorney-general in January

(Irregularities will not vitiate the poll.)

1852, under Tit. 13, ch. 2, § 432 of the Code of Procedure. The general object of the action was, to determine whether the defendant or Benjamin Welch, Jr., was, by the greatest number of votes, elected treasurer of this state, at the general election in 1851. The cause was tried at the Tompkins circuit in March 1852, when a verdict was found for the plaintiffs, under the direction of the court, and the supreme court in the sixth district refused to set it aside on the bill of exceptions taken at the trial, gave judgment against the defendant, with costs, and adjudged that Benjamin Welch, Jr., was entitled to the office. The defendant appealed from the said judgment to this court.

The mode of testing the title of a party to an office, prior to the Code, was by information in the nature of a quo warranto. 2 Rev. St. 581. Although this partook of the nature of criminal proceedings, by reason of the judg ment being, in some cases, followed by a fine (2 Rev. St. 585, 48), yet, it was classed with civil remedies, in the third part of the revised statutes. The 428th section of the Code abolishes the writ of quo warranto, and proceedings by information in the nature of quo warranto, and enacts that the remedy theretofore obtainable in those forms, may be obtained by civil actions, under the provisions of that chapter. The present action was brought under those provisions, and is therefore a civil action; the decisions of the court below are to be reviewed upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings, when the latter differ from the former. The parties, in fact, stand in the same relation to each other as in other civil actions; each, on being defeated, is liable to the other, as well for the ordinary costs of the action, as for an extra allowance. Code, § 308, 309; People v. Clarke, 11 Barb. 337. This is so, whether the People or Benjamin Welch, Jr., be considered as the real plaintiff. Code, § 319.

The issue framed by the pleadings was intended to raise

(Irregularities will not vitiate the poll.)

not merely the question, which party had obtained the certificate of the state canvassers, about which, indeed, there was no dispute, but which party, Mr. Welch or Mr. Cook, was, in truth, elected to the office in controversy. The complaint, among other things, alleges "that Benjamin Welch, Jr., of the county of Erie, is rightfully entitled to the said office of treasurer, and the said defendant has no right thereto;" and it further alleges "that at the annual election in 1851, the said Benjamin Welch, Jr., was, by the greatest number of votes given at that election for the office of treasurer of the said state, duly elected to that office." The defendant, in his answer, after setting out his title to the office under the certificate of the state canvassers, his giving the requisite security, and taking the prescribed oath, alleges on "his information and belief, that at the said general election, the greatest number of votes, duly given by the qualified electors who voted for any person for the office of treasurer, was given for the defendant for such treasurer." The reply impeaches the certificate of the state canvassers, for various irregularities; and especially, for the omission to canvass in favor of Mr. Welch the votes of the second election district of Chesterfield, in the county of Essex, and the votes of the second election district of the 14th ward of the city of New York; and sundry ballots for Benjamin C. Welch, Jr., and Benjamin Welch; and it avers that the votes so given and intended for the said Benjamin Welch, Jr., and those not canvassed in his favor from Chesterfield and New York, were enough to elect him by the greatest number of votes to the office in question.

The issues thus framed, as well as the mode pursued by the respective counsel, on the trial, show that the parties intended to litigate, and did in fact litigate, the question whether Benjamin Welch, Jr., received, at the general election in 1851, a greater number of votes for the office of state treasurer, than the defendant. It was not denied, that the state canvass afforded primâ facie evidence that

(Irregularities will not vitiate the poll.)

each of the candidates received the number of votes allotted to him, and that their certificate was primâ facie evidence that the defendant received a majority of the votes. Like all other prima facie evidence, it was supposed to be open to contradiction. These preliminary remarks will prepare us to consider the various questions which have been urged on this appeal.

As the most important questions arise upon the judge's final disposition of the cause, at the close of the trial, it is proper to ascertain the precise questions then determined. On the close of the proof, the counsel for the defendant claimed that there should be submitted to the jury, as questions of fact: 1. Whether there was any fraud as to the manner of closing the polls, and in canvassing the votes, in the second district of the 14th ward of the city of New York? 2. Whether the votes given for Benjamin C. Welch, Jr., and Benjamin Welch, were intended to be given for Benjamin Welch, Jr.? It was conceded, that all other questions were questions of law and not of fact. The judge declined to submit either of these propositions to the jury; holding that there was no evidence to sustain the allegation of fraud, and inasmuch as the evidence adduced to establish the intention of the electors, who voted the ballots having on them the name of Benjamin C. Welch, Jr., and Benjamin Welch, without the addition of junior, was all on one side, not attempted to be explained or contradicted, and sufficient to establish, primâ facie, the intention of those who deposited them, to vote for Benjamin Welch, Jr., no question of fact was, therefore, left for the jury. The defendant's counsel excepted to this decision. The whole cause was then submitted to the judge, without argument, and he decided certain points, which will be noticed hereafter, to some of which the defendant's counsel excepted; and the jury rendered a verdict for the plaintiff, under the direction of the court, to which direction counsel also excepted.

The decision of the learned judge on the two points

(Irregularities will not vitiate the poll.)

above mentioned, depends upon the same principles, and I shall, therefore, consider them together. The fact assumed by him, that there was no evidence of fraud, in the one case, and in the other, that the intention of the voters was primâ facie established, was not denied by the counsel for the defendant; it was not pretended, that the defendant had given any evidence contradicting that on the part of the plaintiff; nor did the counsel point out any distinct fact, as evidence of fraud, in the New York case. (As to the effect of a fact assumed by the court, and not denied, see 19 Wend. 444.) The objection, therefore, comes down to a mere question of form, whether the judge is bound to submit to the jury, as an open question, to find fraud, without evidence, in the one case, or in the other, to find against a fact prima facie established, and which the other party has not attempted to controvert or explain; or whether he may direct a verdict in conformity to such evidence. This presents a point of practice at nisi prius, which must be settled according to the usage in

this state.

This subject may be presented in three aspects: 1. As to the practice on a demurrer to evidence: 2. On a failure of proof on the part of the plaintiff: and 3. On a failure of proof on the part of the defendant.

1. On a demurrer to evidence, the party demurring must admit every fact which the jury might find from the testimony. The decision of the cause is thus wholly withdrawn from the jury to the court, and the former have nothing further to do than, in a proper case, to assess contingent damages. Gibson v. Hunter, 2 H. Bl. 187; 1 Dougl. 129, per Buller, J.; 3 Johns. Cas. 10, 159; 2 Cowen 133, 134; 1 Johns. 241; Lewis v. Few, 5 Johns. 1; People v. Roe, 1 Hill 470. In the present case, there was no demurrer to evidence, for the cause was, in truth, passed upon by the jury, who gave a verdict for the plaintiff.

2. On a failure of proof on the part of the plaintiff, it

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