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state Legislature to determine the right to , number of void ballots rejected,” which two a seat in the body. Whether the election classes of ballots are to be "secured in a law accomplishes all of the promises of its separate sealed package * * * filed * * * defenders, or whether the directions for the with the original statement of the canvass." mode of casting a vote have proved to be the The section then provides that "forthwith upwisest or the most practical, about which on the completion of such original statement opinions may well differ, it is not for the and of such certified copies thereof, and the court to pronounce. The provisions of the proclamation of the result of the election law are to be given the fullest effect which as to each candidate, the ballots voted, exthey permit of; but in my opinion no con cept the void and protested ballots, shall be struction by the courts is justified which per replaced in the box from which they were mits of judicial interference with or revision taken, together with a statement as to the of elections beyond what is plainly found to number of such ballots so replaced. Each be authorized by the statute. That the courts such box shall be securely locked and sealed. nay enforce provisions of the law and compel and shall be deposited with the officer or obedience to its commands may be true; but | board furnishing such boxes. They shall I do not believe that the Legislature intended be preserved inviolate for six months after that the court or a judge should sit in re such election and may be opened and their view of the ministerial work of the election contents examined upon the order of the Suofficers, and I do not find any provision of preme Court or a justice thereof, or a county this law which goes so far. It is not a ques judge of said county, and at the expiration tion of whether they should have the power, of such time the ballots may be disposed of but of whether the Legislature has conferred in the discretion of the officer or board havit. There is no room for the play of senti ing charge of them.” Section 114 provides mental opinion. The plain duty of the court only for a judicial investigation of the stateis simply to so construe the statute as to ments as to ballots objected to as marked for effectuate its provisions, leaving it to the identification, or rejected as void. A prolegislative power to supply omissions or to vision of that section, quite pregnant of the remedy defects.

legislative intention, expressly provides that The case made by the petitioners for the in such case the "boards of inspectors of writ falls within section 84 of the election election districts, and boards of canvassers, law, concededly. That section prescribes the shall continue in office for the purpose of such form and contents of the tally sheet, upon i proceedings." The evident meaning is that, which the inspectors are required to account but for the provision continuing those for all the ballots voted. The section pro- official boards for the purpose, they would vides that “at the extreme right of such sheet have been functi officio and beyond the comthere shall be a column headed, "Total Num mand of the court. Section 114, therefore, ber of Ballots Accounted for,' in which shall has reference only to an investigation of the be entered opposite each office the sum of the ballots which have not been placed in the total vote cast for all candidates for the sealed box, while section 111, conferring no office, together with the number of ballots power upon the court or judge to order a not wholly blank, on which no vote was recount of the ballots, quite plainly has for counted for that office, the total number of its purpose the preservation of the ballots, wholly blank, and the total number of void which have been counted as valid by the elecballots, and the votes cast, if any, for candi tion board, for use in judicial or legislative dates for such office whose names are not proceedings as evidence upon which to deterprinted upon the ballot. Such sum must mine the title to an office assumed. We are equal the number of ballots voted, as shown thus confined to the provisions of section 84 by the ballot clerks' return of ballots, and for any authority to grant the application for if it does not there has been a mistake in an order to recount the ballots cast and countthe count, and the ballots must be recounted ed at the election, and in my opinion the for such office." Section 110 of the election direction for their recounting is addressed law, pursuant to which section 84 directs the as a guide to the inspectors of election. This vote to be counted, after stating the method section discloses no authority conferred upon of counting, among other things, provides for the court to interfere, and its careful readthe cases where there were more ballots ing and consideration distinctly import that found in the box than are shown to have been when the tally sheet, which is made up by deposited; that is, by withdrawing the excess the inspectors, differs from the return of the in a certain manner, not necessary to be now ballot clerks of ballots given out to voters, described, and where ballots not void are the mistake at once appearing in the count objected to as marked for the purpose of must be corrected by them by a recount. The identification, when they must be counted, language is: "Such sum [that is, of the total but with the objection indorsed upon them by vote “accounted for by the inspectors upon the inspectors. Section 111 provides for an the tally sheet as having been cast] must "original statement of the canvass and certi. equal the number of ballots voted, as shown fied copies" and that the statement shall con by the ballot clerks' return of ballots, and if tain the number of general ballots protested | it does not, there has been a mistake in the as "marked for identification" and "the count, and the ballots must be recounted," etc. That is to say, the mistake being made of a recount, or recanvass, of the vote de by the inspectors in their account of the bal- | novo by the election officers.” He points out lots voted, they must at once go over again what consequences would follow, if section and recanvass the ballots. That the pro 84 shall be held to authorize the order which vision is in the nature of an instruction to the was granted in this case, when he says: “If inspectors of election is shown by its being the election officers are to be reconvened uncontained in a footnote upon the “sample" der the mandate of the court to recount the tally sheet described in the law and upon the

votes, on account of the discrepancy between tally sheet issued to them. The section does the ballot clerks' return and the tally sheet, not say, nor imply, that the court may, at it is manifest. I think, that they are then some time subsequent to the closing of the

in precisely the same situation as they were election, order a recount. There is no pro

1 on election night before filling out and vision for a later return. It is to be ob

signing the original statement of the canserved that, when the inspectors have com

vass and certified copies thereof. If that pleted their work and proclaimed the result,

be so, it follows that on the recount rethe counted ballots have been placed in a box

quired by the statute to discover their misunder lock and seal, and section 84 does not

take they not only would have the right, confer any authority in terms upon the court

but it would be their duty, to reject from to reopen and to recount. The power to open

the count any void ballots that had been a ballot box is conferred by section 111, and

previously overlooked or erroneously counted. is confined to an examination of the contents.

It is evident that if there be any authority A good reason may be found for the non

to order a recount in compliance with said interference of the court with the ministerial

section 84, the order should not limit the work of the election officers in the higher

statutory duty of the inspectors on the renecessity that the result of a public election

count." Clearly, if it should be held that a shall be promptly made known. It is a

recount might be ordered under section 84, wiser policy that the result shall not be still

it is to be by all of the election officers, and left in uncertainty after its proclamation

it must be with the formalities prescribed by the board of inspectors at the close of the

and with the exercise of all the authority canvass. It is impolitic that the adminis

conferred, as upon the original canvass. If tration of governmental affairs should be permitted to be embarrassed through the

so important an exercise of a judicial power

of supervision or review was intended, I delays occasioned by a judicial reopening

think it should have been stated and not of the canvass at the instance of any defeat

left to implication. I think it the sounder ed candidate. Some finality of action on the

and the safer view to take of this law that, part of the election board was intended, and

for the absence of unmistakable language, the power to review appears to be confined

it should not be construed as permitting such to the decision upon ballots rejected as void,

judicial interference with election results or as marked for identification (section 114),

as this order amounts to. leaving any further examination of the bal.

The provision for the preservation of the lots, which have been counted without objection and sealed up, to be made in the pro

ballots is not new in this state. In 1872 an ceeding instituted by a defeated candidate

act was passed requiring it to be done in to try the title of his successful opponent

the city of Brooklyn. In an action in the to the office. The election law has endeav

nature of quo warranto, relating to the ofored to safeguard an election, in explicit

fice of surrogate of Kings county, a question directions as to the performance of their

arose as to the admissibility of the ballots duties by the election officials, and there

thus preserved, and it is interesting to ob are provisions of the law and of the Penal

serve it was held by this court that it was Code for their punishment, if guilty of mis

incumbent upon the party offering the evifeasance or of neglect of duty. Further, the

dence, the relator, to show that the boxes preservation of the ballot boxes under lock

had remained inviolate. It was observed and seal is directed for six months as evi.

that the evidence was fraught with such seridence for use in the courts. I think that ous consequences as to require the utmost the presumption should obtain, as to the scrutiny and care in receiving it, and hence proclaimed result of an election, that the public policy, as well as the rules of evidence, election officers have performed their duties,

required that the burden should be upon the and that a defeated candidate should be | relator in establishing that the ballots bad left to such action, at law or otherwise, as been rigorously preserved according to the

e appropriate wherein to question it. | law. People ex rel, Dailey V. Livingston, as to the ballots counted without objection. 79 N. Y, 279, 290. I agree with the view of Mr. Justice Laugh. It results from what has been said that lin, when, speaking for the Appellate Divi the Appellate Division justices were right in sion, he says that "full scope may be given their convictions, and that the court was to the election law without attributing to without power or authority to order a rethe Legislature an intent to authorize the count of the ballots cast in the election disopening of the ballot boxes for the purpose trict, and therefore that the order appealed


from should be reversed and the application , and was concurred in by all the judges. One should be denied, with costs in all the of the objects of the present election law was courts to the appellants.

to preserve the tally sheets, the return of the

inspectors, and the ballots voted for six BARTLETT and VANN, JJ, (dissenting). months after the election. It was clearly inWe wish to record our emphatic dissent tended that if a recount was necessary the from the decision about to be rendered. proceeding to secure it must be instituted This court (Matter of Stewart, 155 N. Y. within that time, as thereafter the ballots so 515, 50 N. E. 51) in a unanimous decision kept may be destroyed. In the case of People construed the provisions of the election law ex rel. Brink v. Way, 179 N. Y. 174, 71 N. now under consideration. The principal E. 756, it was held by a divided court that question involved was whether the tally under the facts of that case, which bear no sheet, kept during the progress of the vot resemblance to the facts of the case now being, was inferior as evidence to the minis fore us, mandamus would not lie to compel a terial statement of the inspectors made after recount of ballots returned to ballot boxes for the canvass is completed. It was held that preservation, and that the Supreme Court had the tally sheet was primary evidence, and no power to issue the writ. That case did that the statement of the inspectors, al

not involve the tally sheet as primary evithough secondary evidence, was properly

dence, but the failure of the town board of used where the tally sheet was not attacked.

canvassers, or some of them, to discharge cerIt was argued in that case that there was

tain duties. The court did not allude to the no provision in the election law for the cor

Stewart Case, supra, and, instead of overrection of an erroneous record or mistake

ruling it or disturbing it in any way, sancmade and recorded in the tally sheet. This

tioned the main principle upon which that court unanimously held that such contention

case rests by using the following language: was unsound, using this language: “If the

"If it is the duty of a town board of cantally sheet is attacked as being carelessly or

vassers to reconvene and recount the ballots fraudulently kept, so that there is no reli.

on their own motion upon their attention able contemporaneous record of the canvass

being called to violations of the statute by of the votes, it is the obvious intention of

some one or more members, then the court the statute that the boxes of voted ballots,

had power to grant the writ; for the court

has power to compel a recount whenever the preserved for six months under section 111, shall be opened and examined under the

statute places upon the town board of canorder of the Supreme Court, or a justice there

vassers the duty of recounting. Thus section of, in order to determine the actual vote

84 of the election law provides that the sum

of the ballots cast for any office as shown by cast.” In that connection we quoted the

the tally sheet must equal the number of pregnant words of Chief Judge Andrews

ballots voted as shown by the ballot clerks' in People ex rel. Hirsh v. Wood, 148 N. Y.

return of ballots, and that, 'if it does not, 147, 42 N. E. 537: “The object of elections

then there has been a mistake in the count, is to ascertain the popular will, and not to

and the ballots must be recounted for such thwart it. The object of election laws is

office.' In such a case, as we see, it is by the to secure the rights of duly qualified electors,

statute made the duty of the board of canand not to defeat them. Statutory regula

vassers to recount the ballots, which means tions are enacted to secure freedom of choice

that they shall follow the procedure required and to prevent fraud, and not by technical

by the statute for a count of ballots in the obstructions to make the right of voting in

first instance. In the event of a failure to secure and difficult." This court further

make such a recount, the court may by mansaid in Matter of Stewart, 155 N. Y. 549, 50

damus compel it. Any duty which a statute N. E. 51: "In order to appreciate the object

provides that a board of canvassers shall in of the present election law, it is necessary

the future perform may be enforced by manto recall the evils it was designed to remedy.

| damus." In that case the court also conThe old law provided no adequate restraints

strued section 111 of the election law, which upon the officials whose duty it was to can

reads in part as follows: "Forthwith upon vass the votes. The inspectors made up a the completion of such original statement and statement of the result, and immediately

of such certified copies thereof, and the thereafter all the ballots and memoranda of proclamation of the result of the election as the canvass were destroyed. The ballots to each candidate, the ballots voted, except were printed by the candidates, and the the void and protested ballots, shall be rememoranda were not official. In the event placed in the box from which they were taken, of a fraudulent return made by the inspect together with a statement as to the number of ors to the county board of canvassers, it such ballots so replaced. Each such box shall was exceedingly difficult to make the neces be securely locked and sealed, and shall be sary proofs in the absence of record evi deposited with the officer or board furnishing dence."

such boxes. They shall be preserved invioWe cannot understand why no attempt is | late for six months after such election and made in the prevailing opinion to distinguish may be opened and their contents examined the Stewart Case, which is directly in point upon the order of the Supreme Court or a justice thereof, or a county judge of such | grasp new conditions has always been its county, and at the expiration of such time the | strength and pride. When it finds a minis-. ballots may be disposed of in the discretion of terial duty not done, it commands that it the officer or board having charge of them." | be done. * * * The novelty of requiring In brief, this construction was that the object a recount by mandamus is owing to the of preserving these ballots was to permit their fact that never before could a recount be examination, but not a recount, unless the had. When the Legislature ordered the baltally sheet, as primary evidence, was in lots preserved they opened the door to the volved, or a proceeding in the nature of quo writ and invited it to enter. The statute warranto was taken by a counted-out candi makes it possible for the first time for the date for the purpose of establishing his title court to order the election officers to reto the office. Excluding the latter possibility, count and observe the law in so doing. For it is difficult to see what object the Legisla- the first time they can be compelled to do ture had in preserving ballots for six months their duty. The writ cannot be issued by for examination if a recount was not to fol- the judges authorized to order the ballot low. The language of the statute would boxes to be opened, but only by the Supreme seem to need no construction when it provides Court, so that the danger of abuse is imthat within the statutory period of six probable. The risk is no greater than any months these boxes "may be opened and their citizen may have to run with reference to contents examined upon the order of the his life, liberty, or property. Our decision Supreme Court or a justice thereof, or a coun in the Stewart Case, supra, establishes every ty judge of such county." Why should the principle required to affirm the order we Supreme Court, or a justice thereof, or a are now considering." county judge, exercise the power here vested The present law has many defects, particuin it and them if it was for the mere purpose larly in regard to the form of the ballot and of a useless examination? The unanimous the mode of voting the same, and radical decision of this court in Matter of Stewart, | amendments are required to secure a fair supra, holding that the opening of these boxes election without disfranchising a large numwas "in order to determine the actual vote ber of voters by reason of complicated provicast," is a reasonable construction and gives sions that are not readily understood. If it full force to the statute as written.

is to be the settled construction of the elecWhile we are aware that the present dis. tion law that the ballots, locked and sealed sent cannot change the decision about to be in the ballot boxes for six months after made, we prefer to be recorded as voting | an election, cannot be recounted save in an against a construction that emasculates the action of quo warranto, which may drag for election law and, as it seems to us, ignores years through the courts, a new election its plain provisions. In the dissenting opin law cannot be too soon drafted and enacted. ion in People ex rel. Brink V. Way, 179 It will certainly be a great disappointment N. Y., at page 192, 71 N. E. 763, it was to the citizens of the city of New York to said: “With the boxes opened it is a mere be assured that they are in little or no betquestion of arithmetic to ascertain the re ter position in case of an alleged fraudulent sult with absolute accuracy. No discretion count than under the old election law, when is possible. No decision of a question of the burning ballots and memoranda formed fact is required, and nothing but the purest | a part of the bonfire which celebrated the ministerial duty is to be performed. When current victory. it properly appears that this ministerial duty has not been accurately discharged, and

CULLEN, C. J., and O'BRIEN, HAIGHT, that the ballots have not been counted in

and WERNER, JJ., concur with GRAY, J. the manner required by law, or if it appears

BARTLETT and VANN, JJ., dissent in that they have not been counted as they

opinion. were cast, whether through fraud, ignorance, or accident, the court has power to com

Orders reversed, etc. mand the election officers to reassemble and perform the duty which they failed to discharge, by recounting the ballots, and in doing so to observe the safeguards whichi

(183 N. Y. 173) the statute casts around the process. This LA MONTAGNE et al. v. BANK OF NEW evidently was the primary object of the

YORK NAT. BANKING ASS'N. Legislature in enacting that the ballots

(Court of Appeals of New York. Nov. 21, should be preserved. With the new evidence

1905.) now attainable for the first time, the oppor

| 1. PARTNERSHIP_SALE OF ASSETS—LIABILITY tunity for fraud or mistake is reduced to

OF NEW FIRM. a minimum, provided the ballots, when pre Where a firm transfers by a written inserved, may be promptly recounted in a strument all its assets to another firm, and proper case. No statute is needed to expand

covenants that they are worth a certain sum

over its liabilities, such transfer is subject to the common law so as to meet the new

the payment of the debts of the old firm. situation created by the preservation of the sea. Note.-For cases in point, see vol. 38. ballots, for its flexibility and its ability to Cent. Dig. Partnership, 88 323-325, 489-492.]

76 N.E.-3.

2. SAME-LIABILITY FOR DEBTS OF OLD FIRM. | worth, and within one year would yield in Where assets of an old firm are transferred

cash, over all the liabilities of the old firm, to a new firm, it is under obligation to pay the debts of the old firm, at least to the extent of

the sum of $100,000. On the same day all what was realized in good faith therefrom. the partners of the new firm united in a certif

[Ed. Note.For cases in point, see vol. 38, icate as required by the laws of the state of Cent. Dig Partnership, 88 489-492.)

New York to form a limited partnership, stat3. SAME-MISAPPROPRIATION OF ASSETS. ing that the same would commence upon the On the sale by a firm of its business and

23d day of June, 1892, and terminate upon a transfer of all its assets to a new firm, a check representing the contribution of a special

the 1st day of July, 1902. Elisha M. Fulton, partner to the capital was in the presence of Jr., also made an affidavit upon the same day, all the members of the new firm indorsed for which was filed with the certificate, that the deposit by a common member of both firms in

sum of $200,000, specified in said certificate the name of the new firm, and deposited to the credit of such firm the day before the statement

to have been contributed by Elisha M. Fulton, of partnership was filed; the bank being noti Sr., had actually been paid in cash. fied that the certificate of partnership, though "Upon the same day all the partners of the signed, would not be filed until tbe next day. Held that, where a check was drawn on such

new firm met at the office of the old firm, deposit by one of the general partners of the

which office was thereafter to be the office new firm and applied to an overdraft of the old of the new firm, and Elisha M. Fulton, Sr., firm, it was not a misappropriation of the assets

the special partner, delivered his certified of the new firm, authorizing the latter to sue the bank to recover the amount thereof, though

check for $200,000, payable to the order of the new firm was not authorized under its La Montagne, Clarke & Co., to Mr. Clarke, articles to do business until the next day; no who indorsed it 'for deposit and signed the notice of such fact being given the bank, and

firm name thereto. Thereafter, and about 2 the circumstances not being of such a character as to put the bank on inquiry as to such pro

o'clock in the afternoon of this day, Clarke vision.

and Fulton, Jr., went to the banking house of

the defendant, taking the certified check with Appeal from Supreme Court, Appellate Di

them, and they there had an interview with vision, First Department.

Mr. Mason, the cashier. The old firm had a Action by Edward La Montagne, Jr., and

running account at the bank, and Mr. Clarke others, against the Bank of New York Na

introduced Mr. Fulton, Jr., to the casbier as a tional Banking Association. From a judg.

new member of the firm, and said to Mr. ment of the Appellate Division (88 X. Y. Supp.

Mason that the $200,000 check was the capital 21, 94 App. Div. 219), reversing a judgment

of the special partner, Mr. Fulton's father. for plaintiffs and dismissing the complaint,

An account was then and there opened with plaintiffs appeal. Modified.

the new firm by depositing the check to its The undisputed facts, as stated in the dis credit, and the cashier informed one of the senting opinion and approved in the prevail bookkeepers that the new firm was to take ing opinion below, are as follows:

the place of the old firm, and that the latter's . "On and prior to June 22, 1892, three of the account would be eventually closed out. The plaintiffs, Edward La Montagne, Jr., Herman signature book was then brought in, and Mr. Olarke, and Wallace B. Smith, were carrying Fulton, Jr., signed therein the firm and his on business as brokers under the firm name name also. Jr. Fulton, Jr., then said to Mr. of La Montagne, Clarke & Co. On the 22d Mason that they were making the deposit that day of June, 1892, the three plaintiffs above day, although the firm did not expect to comnamed, together with Elisha M. Fulton, Sr., mence business until two or three days there and Elisha M. Fulton, Jr., entered into written after; that they had just signed the papers, articles of copartnership for the formation but that the certificate could not be filed until of a limited partnership under the laws of the the next day, as it was too late, and the firm state of New York to do a general brokerage | really would not commence to do business business. The articles recited the facts that until several days thereafter. Mr. Fulton, the members of the old firm, together with Jr., also told Mr. Mason that he was going Fulton, Jr., were to be general partners, and in as a general partner, but that his father, Fulton Sr., a special partner; that the limited whose check they had just deposited, was to partnership should begin upon the 230 day of be merely a special partner. At the close of June, 1892, and, unless sooner dissolved, should the banking business upon the same day, continue for the term of 10 years; that the June 22, 1892, the old firm had overdrawn its special partner should contribute as his share account $50,593.79, and a messenger from of the capital of the limited partnership the bank was sent to the place of business of $200,000; that the partners La Montagne, the old firm, who notified the firm to make Clarke, and Smith should contribute to the good its account. Thereupon one of the gencapital of such limited partnership the sum of eral partners of the new firm, other than $100,000, which should be so contributed by | Fulton, Jr., drew a check upon the new firm transferring to said limited partnership all for $60,000, which was sent to the bank with of the property, assets, and good will of the a deposit slip, made out by the general partformer partnership of La Montagne, Clarke & ner, Smith, and a deposit made of it to the Co.; and in these articles the three members credit of the old firm, thereby giving the old of the old firni covenanted that such property firm a balance on hand in its account of and assets, so transferred by them, were $9,106.21.

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