Pillion v. Lawley

. Order modified on the facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: In this proceeding we have examined 1154 ballots cast in the primary election held in the Forty-fourth Congressional District for the nomination of the Republican candidate for member of Congress from that district. These ballots were received in evidence by the Special Term and marked as exhibits numbers 1 to 1154 inclusive. The Special Term found the respondent John C. Butler to be the successful candidate and petitioner appealed to this court from the order determining respondent Butler the nominee of the Republican party for such office. The Special Term has found that respondent Butler received 7771 valid ballots and petitioner-appellant Pillion 7749 valid ballots. Section 105 of the Election Law prescribes the instructions to voters as to the manner of marking ballots and directs that such instructions shall be printed on the stub at the top of the ballot. Section 212 of the statute prescribes the rules for counting ballots. While the rules set forth in the statute have compelled us in some instances to invalidate ballots for each of the contestants when the clear intention of the voter could be readily determined from the ballot in question, we are bound by the provisions of the statute, and it being clear and unambiguous, its terms cannot be. changed by the court. . Of the ballots held valid for Butler by the Speeial'Term, we find ballots bearing exhibits numbers 218, 16, 419, 457, 477, 769, 861,893, 947, 975, 997, 490, 303, 506, 566, 293, 450, 453, 489, 652, 671, 682, 700, 710, 714, 716, 726, 731, 749, 768, 847, 853, 883, 886, 955, 987, 437, 505, totalling 38, to be invalid (either void or blank). Of the ballots held valid for Pillion, we find ballots bearing exhibit numbers 417, 783, 784, 792, 795, 868, 869, 880, 887, 940, 941, 953, 963, 896, 440, 845, 613, 459, 460, 467, 676, 686, 738, 762, 839, 879, 911, 937, 1020, 878, 526, totalling 31, to be invalid (either void or blank). We also find that ballot bearing exhibit number 545 not counted for Pillion by the Special Term should be counted and ballot bearing exhibit number 650 not counted by the Special Term should be counted for Butler. The totals of valid votes east found by Special Term should therefore be modified accordingly and a finding made that respondent Butler received 7734 valid ballots and appellant Pillion, 7719 valid ballots. All concur. (Appeal from an order declaring John C. Butler to be the nominee of the Republican Party for the office of representative in Congress for the Forty-fourth District of New York.) Present — Taylor, P. J., MeCurn, Vaughan, Kimball and Piper, JJ.