48 Misc. 2d 27 | N.Y. Sup. Ct. | 1965
Petitioner herein was a candidate for the office of Trustee in the Village of Minoa at an election held on March 16, 1965. He was not elected, and now petitions the court for an order declaring him to be elected or in the alternative, directing a new election for the office of Village Trustee. The respondents, Edward Kalin, Willard B. Bockwood, Jesse Pooler, Thomas Nichols and Donald Peterelli, are the Mayor and Trustees of the Village of Minoa and as such constitute the Commissioners of Election of said village. The candidates for Trustee were petitioner and respondents Pooler, Bockwood and Caswell, and the order of appearance of the candidates on the single voting machine used at said election was as follows:
Column 2 Column 3
People’s Party Jesse Pooler Willard B. Bockwood
Independent Party Jesse Pooler Willard B. Bockwood
Progressive Party James Byan Kenneth Caswell
The results of the election, according to the voting machine totals and the official canvass, were as follows:
Caswell ...................... 247
Bockwood .................... 240
Byan......................... 238
Pooler........................ 235
Following the election, the respondents Caswell and Bock-wood were declared the elected Trustees. It is the contention of petitioner that the voting machine was prepared and set up in such manner as to deny to the voters a free choice of any two candidates for the offices of Trustee. In support of the petition are the affidavits of 10 registered voters who participated and voted in the election to the effect that they had cast their respective votes for Jesse Pooler in Column 2 and that thereafter they attempted to cast a ballot in favor of James Byan, the petitioner, in Column 2 but were unable to do so because the machine lever over petitioner’s name had locked and could not be depressed. The affidavits further alleged that the affiants thereupon either cast a ballot in the third column for the office of Trustee or voted for no other candidate for the office. Also offered in support of the petition was an affidavit of the voting machine custodian which alleges, “ that the voting machine was set up so that it was impossible to cast more than one ballot in the same column for the election of Trustee, which could possibly preclude a
“ 1. On April 15, 1965 at 8:00 p.m., Frank Mapstone, the custodian of the voting machine used in the said election, conducted an examination in the presence of all of the parties hereto, or their legal representatives.
“ 2. The examination disclosed that one (1) vote could be cast for the office of Trustee in Column 2; after a lever was depressed in that column, no other lever in the same column could be depressed without releasing or raising the first lever so depressed.
“ 3. Two (2) votes could be east in any row in Column 3. irrespective of what vote, if any, was east in Column 2.
“5. Pour hundred and eighty-eight (488) voters entered the polling booth; four hundred and eighty-five (485) votes were cast in Column 1, the Mayor’s contest; four hundred and seventy-three (473) were cast in Column 2 for Trustee; and four hundred and eighty-seven (487) in Column 3 for Trustee.”
While the moving papers did not specifically state, it was generally conceded by petitioner, upon the argument of the motion, that the application was based on article 14 of the Election Law.
Section 248 (subd. 1) of the Election Law provides: “The machine shall be so adjusted that when one or more knobs, equaling the total number of persons to be elected to that office shall have been operated, all other knobs used in connection with that office shall be thereby locked.”
Section 53-a of the Village Law gave the court the same review of village elections and registration therefor as is provided in article 14 of the Election Law. Section 69 of the Village Law provided that the provisions of the Election Law shall apply to all elections held under the provisions of said article and not inconsistent therewith.
It is clear that the defects in the voting machine, as revealed in paragraphs 2 and 3 of the stipulated report of inspection filed with the court, prevented a complete freedom of choice in the balloting for two candidates for the respective offices of Village Trustee. With the closeness of the election it is conceivable that this fact may have ■ influenced the results. However, the court is of the opinion that it has no authority under the Election Law-to grant the relief sought by petitioner. Interestingly, it should be observed that no complaint concerning the setup or mechanical operation of the machine was made to anyone in authority during the voting period on the day of election.
Section 330 of the Election Law gives this court jurisdiction to summarily determine any question of law or fact as to any of the subjects enumerated in said section. There are set forth, in the section, seven subdivisions listing the subject matters which fall within the purview of such jurisdiction. Subdivision 2 thereof empowers the court to direct the holding of a new primary election or the reassembling of any convention where the same “ has been characterized by such frauds or irregulari
In Matter of Ginsberg v. Heffernan (186 Misc. 1029 [1945]), unsuccessful candidates for Municipal Court Justice, Borough of The Bronx, sought to restrain the Commissioners of Elections of the City of New York from issuing certificates of election to successful candidates and asked the court to declare the election invalid and direct a new election. In that election, two Justices
In Matter of Carson (164 Misc. 945, affd. 254 App. Div. 801) the petitioner, a Democratic candidate for the office of Supervisor in the City of Rensselaer, claimed that because of the mechanical failure of the registering mechanism in a certain voting machine, not all of the votes cast for him were indicated by the counter. The petitioner sought an order in pursuance of section 333 of the Election Law for a mechanical examination of the machine and urged that if the examination disclosed a failure to fully record the votes cast for him, that the court take proof by affidavit or by an oral examination of the voters as to the number of votes cast for petitioner and to thereupon direct a recanvass to be made in accordance with the findings reached upon such proof. The court, in granting an order directing the mechanical examination of the machine but denying the balance of the motion, and commenting on section 330 of the Election Law, stated (pp. 948-949):
“ There is, of course, power to correct discrepancies due to clerical mistakes in returning the vote, and by mandamus to compel such correction by the canvassers (Matter of Smith v. Wenzel, 216 N. Y. 421, 426), but here the discrepancy does not arise from any error of the inspectors in recording the vote which could be ascertainable or corrected by an examination of the counters on the machine, but the actual result is dependent upon proof which will supply the deficiencies of the machine. In this case, such proof seems available only by showing how the electors voted.
“ Quo warranto or a similar action admitting of a plenary examination into the actual votes cast for the office of supervisor in the district in question seems to be the remedy of the petitioner. (People ex rel. Deister v. Wintermute, 194 N. Y. 99.) There, upon mechanical failure of the voting machine properly to record the vote, it was held in an action in quo warranto that proof of the actual vote cast by electors was available to the relator. A summary determination of a question of this kind is not within the jurisdiction of the court. The summary jurisdic
In Matter of Oster v. Village of Jordan (42 Misc 2d 432 [1964]) the petitioner, a write-in candidate, sought to have an election for Village Trustee voided because the machine was set up in such a manner as to make it impossible to write in the name of a candidate. The court held the summary jurisdiction of section 330 of the Election Law does not give the court power to void a general election, but that petitioner could test the matter by a quo warranto proceeding. Justice Cabdamone stated (p. 434): “Although this court determines that the applicant has no remedy under the summary provisions of the Election Law, it does not mean to suggest that the applicant has no remedy at all. The proper remedy here, where title to office is to be tested, is by a ‘ quo warranto ’ proceeding (Greene v. Knox, 175 N. Y. 432, 437; Matter of Ingamells v. Board of Elections of Oswego County, 259 App. Div. 36, 39; Executive Law, § 63-b) upon the disputable facts alleged in the affidavits. (Southard v. McGann [279 App. Div. 588].) Where there was a mechanical failure of a voting machine, 1 quo warranto ’ was held to be the proper remedy. (People ex rel. Deister v. Wintermute, 194 N. Y. 99; Matter of Carson, 164 Misc. 945.)”
Since this court is without authority to order a new general election, it follows that it has no power to declare the election of petitioner. For the reasons stated, petitioner’s motion is denied, without costs and without prejudice to the prosecution of such action or other proceeding by petitioner as he may be advised.