In re Weinfeld , 197 N.Y.S. 138 ( 1922 )

Finch, J. (dissenting in part):

I am unable to agree with that part of the decision holding that the mere fact of the existence of blank, void and protested ballots affords an opportunity to have the court review all of such ballots. As a.practical matter, such ballots exist in every election district in the State, and the decision means that whenever the result is at all close, it may not be certainly known for some time, and upon the court is thrown the burden of becoming an “ appellate canvasser of the protested, void or blank ballots, or to enter upon a judicial investigation of those ballots in order to ascertain, for any use or end, what result will ensue.” (Matter of Whitman, No. 1, 225 N. Y. 1, 8.) The only limit to this is when the plurality is so large that it greatly exceeds the number of void, blank and protested ballots. If memory serves, without opportunity to check figures, very many elections have been decided in this State by pluralities much less than the number of void, blank and protested ballots. There will always be those whose time is worth so little that they will be willing to risk the speculation of everything to gain and nothing to lose involved in such an examination. The time of the courts, however, belongs to the public and should not be invoked, and I do not believe it can be invoked, except upon facts duly showing that an illegality has been committed or grievance exists. “A suitor to the courts must present a grievance in the contemplation of the law and the facts from which it arises.” (Matter of Whitman, supra.) No matter how quick and summary a determination is provided, it nevertheless must be initiated in accordance with the fundamental principle that proceedings in the courts can only arise upon the presentation of facts duly verified and showing that a grievance exists. In the case at bar this can only be said of one election district.

It seems to me that there is nothing in the legislative enactment which does away with this fundamental principle, but, on the contrary, the statute is predicated upon its existence. It is important that judicial investigations should not interfere, except upon proper facts duly verified, with the results of an election being speedily and certainly known.

It follows that in so far as the order appealed from dismisses the proceeding, it should be affirmed. In other respects I concur with the majority of the court.

Order reversed, without costs, and the matter remitted to the Special Term for further action in accordance with opinion.