119 N.E. 807 | NY | 1918
The inspectors made their return on a printed form furnished to them as provided by statute, and such return is complete and does not bear evidence of any clerical error existing therein. No tally sheets were furnished the inspectors or attached by them to the return to the board of canvassers. No tally sheet was kept by them except that one of the inspectors "kept count on a yellow sheet of paper;" and it affirmatively appears by the affidavits presented by the relator, for the purpose of obtaining an order to show cause herein, that such yellow sheet of paper was not preserved. The value of a tally sheet arises from its record of a count recorded before the return is completed. An order, upon the facts before us, directing the inspectors *678 to produce a tally sheet, would in effect be a direction to them to make a tally sheet from memory. There is no authority in the statute or otherwise to make such an order, or where nothing is omitted from the statement of the canvass, and no "merely clerical mistakes exist therein," to direct the inspectors to recanvass the vote as prayed for herein. With these statements we concur with the per curiam opinion of the Appellate Division.
The order should be affirmed.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK and McLAUGHLIN, JJ., concur; HOGAN and CRANE, JJ., dissent.
Order affirmed.
