People ex rel. McAniney v. Vandervoort

Van Brunt, P. J.:

No order for a peremptory mandamus could issue in this case, because, as appears from the papers, there are disputed questions of fact which it would be necessary to determine in the 'manner prescribed by* law before the relief asked for could be granted.

The main question upon which the appeal in this case is founded is as to the fact that there were differences in the color of the paper used for ballots by the appellants and respondents. But this difference, even if it existed, does not necessarily affect the validity of the votes cast) because there is evidence tending to show that the paper upon which the ballots of the respondents were printed had the same test of authenticity as the paper upon which the ballots of the appellants were, printed. It appears from the evidence that, both had been approved by Mr. Plimley, chief clerk of the bureau of elections of the police department of the city of New York,., who was the custodian of the primary records. If there was any conflict" between the parties in respect to this matter, then, clearly,, an issue of fact was- raised and a peremptory mandamus could, not issue.

The order should be affirmed, with ten, dollars costp and. disbursements. - ■ .

Rumsey, Ingraham and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.