Inselbuch v. Helfand
243 A.D. 554
| N.Y. App. Div. | 1934

Order reversed on the law and the facts and motion granted, without costs, to the extent of directing an examination of the voting machines, on the ground of irregularity in the canvass. We had this identical question, involving the same office, before us in Matter of Schwartzwald (240 App. Div. 990); but on this appeal additional irregularities were shown as to reading the results in several districts by unauthorized persons in violation of the provisions of section 262 of the Election Law. As in the Schwartzwald case, there was general denial of the facts stated in the petition and affidavits. In that case we reversed an order denying an inspection and re-examination of the voting machines with respect to a recount of the votes cast at the general election held on the 7th day of November, 1933, and granted the motion. That case is not to be distinguished on the law or the facts presented and, of necessity, is controlling here. The inspection shall begin at ten o’clock a. m. on Wednesday, December 19, 1934, at the place where the voting machines are stored. The inspection is to be under the supervision of the board of elections, each party to have two representatives *555present; the appellant to deposit with the board of elections the sum of $100 to secure the payment of the actual expense of handling the voting machines on such inspection. The matter is remitted to the Special Term for such order as may be proper after the completion of the inspection. Stay granted. Lazansky, P. J., Hagarty and Davis, JJ., concur; Kapper and Carswell, JJ., dissent and vote to affirm upon the ground that neither the spirit nor the letter of the Election Law calls for a recanvass of the declared result in the absence of a specific, substantial showing of such error as would tend to alter the result, and that no such showing of error in result is presented by the record before us.