128 N.Y.S. 547 | N.Y. App. Div. | 1911
Concurrence Opinion
This court ordered the inspectors to make a return, which they have done. They were still in office for the purpose of making a correct return of the votes cast if they had made no return at all or had made a mistaken one. The return, therefore, which they made under the mandamus directed to .be issued by this court is of some
Motion denied.
Lead Opinion
It was the duty of the inspectors to file the tally sheet, and this court properly required them to perform that duty. Their duties as a canvassing board have otherwise ended. The vote of the town and not the statement of the result determines the right to sell liquors. The statement originally made, however, is presumptive evidence of the result of the vote. (People ex rel. Leonard v. Hamilton, 42 App. Div. 212.) There must be some proper way of now determining the result of the vote. Apparently a motion may be made under section 27 of the Liquor Tax Law to cancel the certificate on the ground that the holder is not entitled to it for the reason that the town voted against the sale of liquors. Under section 374 of the Election Law the ballot box may be opened, and it would seem there are ample means of determining in a proper way the result of the election. The petitioner’s application to intervene is denied for the reason that the return as filed cannot prejudice him, as the question as to the result of the vote must be determined otherwise and in another proceeding.
The motion is, therefore, denied.
All concurred, Houghton, J., concurring in result in memorandum, except Betts, J., not voting.