126 N.Y.S. 908 | N.Y. App. Div. | 1911
. The defendants concede that a mandamus would lie to compel them to tile the tally sheet kept by them on the canvass of- the votes for or against proposition Ho. 2 submitted to the voters of the town under the Liquor Tax Law. (See Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 13, as amd. by Laws of 1910, chap. 485.) Confessedly the defendant inspectors have failed to do this, and they should be compelled to do so. The moving papers show that there was a "mistake made in the're turn of the defendant inspectors and that the. figures were-transposed, and that the number of votes returned “for” the second proposition was wrong and should have been returned “ against ” it. There is no dispute of this-except that certain persons aver that the vote was announced as returned and no protest made.
Irrespective of the special provisions of the Election Law the court has power to compel election inspectors to «make a correct return of the ballots counted by them. (Matter of Stewart, 155 N. Y. 545; People ex rel. Smith v. Schiellein, 95 id. 124; People ex rel. McLaughlin v. Ammenwerth, 197 id. 340.)
It may be the vote was correctly returned in the present instance. If so, the defendants can so return. If the figures were transposed and the return made was a mistake, manifestly it should be corrected.
The order denying a peremptory writ of mandamus should be reversed, with ten dollars costs and disbursements, and the motion granted directing such writ, compelling the defendants to file the tally sheet in-the proper town clerk’s.office, and further directing them to make a correct return according to their count of the votes cast, without costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and order granted directing a mandamus to issue compelling defendants to file the tally sheet in the town clerk’s office of the town of Kortright forthwith, and to make a correct return of the votes cast-as counted by them upon proposition'Ho. 2, submitted to the voters under the Liquor Tax Law.