Hogan v. Supreme Court , 16 N.Y.S.2d 351 ( 1939 )

Prank J. Hogan

was the candidate of the Democratic party for the office of mayor and John J. Ahern the candidate of the Republican party. The contest was so close that the result in the second district of the eighth ward would be decisive of the election. It is conceded that the voting machine used in that district was defective and would not register more than eleven votes (which was the number of votes registered for Ahern) for the candidate occupying the place on the ballot where Ahern’s name appears. It is further a fact that Ahem would have been elected had he received in that district the average number of votes which the candidates of his party received. The result of the ballot in that district was Hogan 471, Gilhooley 15, Ahern 11. The same machine when used in the first election district of the thirteenth ward of the city of Troy in 1938 was likewise defective and recorded for the candidate Mead for United States Senator a markedly less number of ballots than his associates received and the inspectors of election of that district and ward at that time advised the commissioners of election of the faulty condition of the voting machine number 2588.

These proceedings are brought under section 330 of the Election Law. It states in part as follows: “ The Supreme Court is vested with jurisdiction to summarily determine any question of law or fact arising as to any of the subjects set forth in this section, which shall be construed liberally. Such proceedings may be instituted as a matter of right and the Supreme Court shall make such order as justice may require. * * * 4. Protested, wholly blank or void ballots shown upon the statement of the canvass in any election district or districts, or any protested or rejected absentee voters’ ballots * * *.”

It has been determined by the Court of Appeals in Matter of Creedon (264 N. Y. 40) that ballots as mentioned in the foregoing subdivision include a ballot on the voting machine and the record thereof. If Matter of Carson (164 Misc. 945; affd., 254 App. Div. 801) holds a different doctrine we disaffirm it. In our view the question hem presented was not considered there as the certificate of election had been issued.

The examination of the individual voters as to the way in which they cast their ballots after election is competent where it appears that there was a defect in the voting machine. (People ex rel. Deister v. Wintermute, 194 N. Y. 99.)

An order of prohibition is an unusual and harsh remedy not ordinarily to be granted where an opportunity for correction of the error on appeal exists.

We are denying this application as a matter of law and not as a matter of discretion for the reason that we desire that the parties may be able to review our decision in the Court of Appeals.

Application for order of prohibition denied, as a matter of law.

Hill, P. J., Crapser and Heffernan, JJ., concur; Bliss and Schenck, JJ., dissent, each with an opinion.