state Legislature to determine the right to a seat in the body. Whether the election law accomplishes all of the promises of its defenders, or whether the directions for the mode of casting a vote have proved to be the wisest or the most practical, about which opinions may well differ, it is not for the court to pronounce. The provisions of the law are to be given the fullest effect which they permit of; but in my opinion no construction by the courts is justified which permits of judicial interference with or revision of elections beyond what is plainly found to be authorized by the statute. That the courts may enforce provisions of the law and compel obedience to its commands may be true; but I do not believe that the Legislature intended that the court or a judge should sit in review of the ministerial work of the election officers, and I do not find any provision of this law which goes so far. It is not a question of whether they should have the power, but of whether the Legislature has conferred it. There is no room for the play of sentimental opinion. The plain duty of the court is simply to so construe the statute as to effectuate its provisions, leaving it to the legislative power to supply omissions or to remedy defects.

The case made by the petitioners for the writ falls within section 84 of the election law, concededly. That section prescribes the form and contents of the tally sheet, upon which the inspectors are required to account for all the ballots voted. The section provides that "at the extreme right of such sheet there shall be a column headed, "Total Number of Ballots Accounted for,' in which shall be entered opposite each office the sum of the total vote cast for all candidates for the office, together with the number of ballots not wholly blank, on which no vote was counted for that office, the total number of wholly blank, and the total number of void ballots, and the votes cast, if any, for candidates for such office whose names are not printed upon the ballot. Such sum must equal the number of ballots voted, as shown by the ballot clerks' return of ballots, and if it does not there has been a mistake in the count, and the ballots must be recounted for such office." Section 110 of the election law, pursuant to which section 84 directs the vote to be counted, after stating the method of counting, among other things, provides for the cases where there were more ballots found in the box than are shown to have been deposited; that is, by withdrawing the excess in a certain manner, not necessary to be now described, and where ballots not void are objected to as marked for the purpose of identification, when they must be counted, but with the objection indorsed upon them by the inspectors. Section 111 provides for an "original statement of the canvass and certified copies" and that the statement shall contain the number of general ballots protested as "marked for identification" and "the

number of void ballots rejected," which two classes of ballots are to be "secured in a separate sealed package * * filed with the original statement of the canvass." The section then provides that "forthwith upon the completion of such original statement and of such certified copies thereof, and the proclamation of the result of the election as to each candidate, the ballots voted, except the void and protested ballots, shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall be securely locked and sealed, and shall be deposited with the officer or board furnishing such boxes. They shall be preserved inviolate for six months after such election and may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of said county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them." Section 114 provides only for a judicial investigation of the statements as to ballots objected to as marked for identification, or rejected as void. A provision of that section, quite pregnant of the legislative intention, expressly provides that in such case the "boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings." The evident meaning is that, but for the provision continuing those official boards for the purpose, they would have been functi officio and beyond the command of the court. Section 114, therefore, has reference only to an investigation of the ballots which have not been placed in the sealed box, while section 111, conferring no power upon the court or judge to order a recount of the ballots, quite plainly has for its purpose the preservation of the ballots, which have been counted as valid by the election board, for use in judicial or legislative proceedings as evidence upon which to determine the title to an office assumed. We are thus confined to the provisions of section 84 for any authority to grant the application for an order to recount the ballots cast and counted at the election, and in my opinion the direction for their recounting is addressed as a guide to the inspectors of election, This section discloses no authority conferred upon the court to interfere, and its careful reading and consideration distinctly import that when the tally sheet, which is made up by the inspectors, differs from the return of the ballot clerks of ballots given out to voters, the mistake at once appearing in the count must be corrected by them by a recount. The language is: "Such sum [that is, of the total vote "accounted for" by the inspectors upon the tally sheet as having been cast] must equal the number of ballots voted, as shown by the ballot clerks' return of ballots, and if it does not, there has been a mistake in the count, and the ballots must be recounted,"

N. Y.)

etc. That is to say, the mistake being made by the inspectors in their account of the ballots voted, they must at once go over again and recanvass the ballots. That the provision is in the nature of an instruction to the inspectors of election is shown by its being contained in a footnote upon the "sample" tally sheet described in the law and upon the tally sheet issued to them. The section does not say, nor imply, that the court may, at some time subsequent to the closing of the election, order a recount. There is no provision for a later return. It is to be observed that, when the inspectors have completed their work and proclaimed the result, the counted ballots have been placed in a box under lock and seal, and section 84 does not confer any authority in terms upon the court to reopen and to recount. The power to open a ballot box is conferred by section 111, and is confined to an examination of the contents.

A good reason may be found for the noninterference of the court with the ministerial work of the election officers in the higher necessity that the result of a public election shall be promptly made known. It is a wiser policy that the result shall not be still left in uncertainty after its proclamation by the board of inspectors at the close of the canvass. It is impolitic that the administration of governmental affairs should be permitted to be embarrassed through the delays occasioned by a judicial reopening of the canvass at the instance of any defeated candidate. Some finality of action on the part of the election board was intended, and the power to review appears to be confined to the decision upon ballots rejected as void, or as marked for identification (section 114), leaving any further examination of the ballots, which have been counted without objection and sealed up, to be made in the proceeding instituted by a defeated candidate to try the title of his successful opponent to the office. The election law has endeavored to safeguard an election, in explicit directions as to the performance of their duties by the election officials, and there are provisions of the law and of the Penal Code for their punishment, if guilty of misfeasance or of neglect of duty. Further, the preservation of the ballot boxes under lock and seal is directed for six months as evidence for use in the courts. I think that the presumption should obtain, as to the proclaimed result of an election, that the election officers have performed their duties, and that a defeated candidate should be left to such action, at law or otherwise, as may be appropriate, wherein to question it, as to the ballots counted without objection. I agree with the view of Mr. Justice Laughlin, when, speaking for the Appellate Division, he says that "full scope may be given to the election law without attributing to the Legislature an intent to authorize the opening of the ballot boxes for the purpose

of a recount, or recanvass, of the vote de novo by the election officers." He points out what consequences would follow, if section 84 shall be held to authorize the order which was granted in this case, when he says: "If the election officers are to be reconvened under the mandate of the court to recount the votes, on account of the discrepancy between the ballot clerks' return and the tally sheet, it is manifest, I think, that they are then in precisely the same situation as they were on election night before filling out and signing the original statement of the canvass and certified copies thereof. If that be so, it follows that on the recount re

quired by the statute to discover their mistake they not only would have the right, but it would be their duty, to reject from the count any void ballots that had been previously overlooked or erroneously counted. It is evident that if there be any authority to order a recount in compliance with said section 84, the order should not limit the statutory duty of the inspectors on the recount." Clearly, if it should be held that a recount might be ordered under section 84, it is to be by all of the election officers, and it must be with the formalities prescribed and with the exercise of all the authority conferred, as upon the original canvass. so important an exercise of a judicial power of supervision or review was intended, I think it should have been stated and not left to implication. I think it the sounder and the safer view to take of this law that, for the absence of unmistakable language, it should not be construed as permitting such judicial interference with election results as this order amounts to.

If

The provision for the preservation of the ballots is not new in this state. In 1872 an act was passed requiring it to be done in the city of Brooklyn. In an action in the nature of quo warranto, relating to the office of surrogate of Kings county, a question arose as to the admissibility of the ballots thus preserved, and it is interesting to observe it was held by this court that it was incumbent upon the party offering the evidence, the relator, to show that the boxes had remained inviolate. It was observed that the evidence was fraught with such serious consequences as to require the utmost scrutiny and care in receiving it, and hence public policy, as well as the rules of evidence, required that the burden should be upon the relator in establishing that the ballots had been rigorously preserved according to the law. People ex rel. Dailey v. Livingston, 79 N. Y. 279, 290.

It results from what has been said that the Appellate Division justices were right in their convictions, and that the court was without power or authority to order a recount of the ballots cast in the election district, and therefore that the order appealed

from should be reversed and the application should be denied, with costs in all the courts to the appellants.

BARTLETT and VANN, JJ. (dissenting). We wish to record our emphatic dissent from the decision about to be rendered. This court (Matter of Stewart, 155 N. Y. 545, 50 N. E. 51) in a unanimous decision construed the provisions of the election law now under consideration. The principal question involved was whether the tally sheet, kept during the progress of the voting, was inferior as evidence to the ministerial statement of the inspectors made after the canvass is completed. It was held that the tally sheet was primary evidence, and that the statement of the inspectors, although secondary evidence, was properly used where the tally sheet was not attacked. It was argued in that case that there was no provision in the election law for the correction of an erroneous record or mistake made and recorded in the tally sheet. This court unanimously held that such contention was unsound, using this language: "If the tally sheet is attacked as being carelessly or fraudulently kept, so that there is no reliable contemporaneous record of the canvass of the votes, it is the obvious intention of the statute that the boxes of voted ballots, preserved for six months under section 111, shall be opened and examined under the order of the Supreme Court, or a justice thereof, in order to determine the actual vote cast." In that connection we quoted the pregnant words of Chief Judge Andrews in People ex rel. Hirsh v. Wood, 148 N. Y. 147, 42 N. E. 537: "The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult." This court further said in Matter of Stewart, 155 N. Y. 549, 50 N. E. 51: "In order to appreciate the object of the present election law, it is necessary to recall the evils it was designed to remedy. The old law provided no adequate restraints upon the officials whose duty it was to canvass the votes. The inspectors made up a statement of the result, and immediately thereafter all the ballots and memoranda of the canvass were destroyed. The ballots were printed by the candidates, and the memoranda were not official. In the event of a fraudulent return made by the inspectors to the county board of canvassers, it was exceedingly difficult to make the necessary proofs in the absence of record evidence."

We cannot understand why no attempt is made in the prevailing opinion to distinguish the Stewart Case, which is directly in point

and was concurred in by all the judges. One of the objects of the present election law was to preserve the tally sheets, the return of the inspectors, and the ballots voted for six months after the election. It was clearly intended that if a recount was necessary the proceeding to secure it must be instituted within that time, as thereafter the ballots so kept may be destroyed. In the case of People ex rel. Brink v. Way, 179 N. Y. 174, 71 N. E. 756, it was held by a divided court that under the facts of that case, which bear no resemblance to the facts of the case now before us, mandamus would not lie to compel a recount of ballots returned to ballot boxes for preservation, and that the Supreme Court had no power to issue the writ. That case did not involve the tally sheet as primary evidence, but the failure of the town board of canvassers, or some of them, to discharge certain duties. The court did not allude to the Stewart Case, supra, and, instead of overruling it or disturbing it in any way, sanctioned the main principle upon which that case rests by using the following language: "If it is the duty of a town board of canvassers to reconvene and recount the ballots on their own motion upon their attention being called to violations of the statute by some one or more members, then the court had power to grant the writ; for the court has power to compel a recount whenever the statute places upon the town board of canvassers the duty of recounting. Thus section 84 of the election law provides that the sum of the ballots cast for any office as shown by the tally sheet must equal the number of ballots voted as shown by the ballot clerks' return of ballots, and that, if it does not, then there has been a mistake in the count, and the ballots must be recounted for such office.' In such a case, as we see, it is by the statute made the duty of the board of canvassers to recount the ballots, which means that they shall follow the procedure required by the statute for a count of ballots in the first instance. In the event of a failure to make such a recount, the court may by mandamus compel it. Any duty which a statute provides that a board of canvassers shall in the future perform may be enforced by mandamus." In that case the court also construed section 111 of the election law, which reads in part as follows: "Forthwith upon the completion of such original statement and of such certified copies thereof, and the proclamation of the result of the election as to each candidate, the ballots voted, except the void and protested ballots, shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall be securely locked and sealed, and shall be deposited with the officer or board furnishing such boxes. They shall be preserved inviolate for six months after such election and may be opened and their contents examined upon the order of the Supreme Court or a

justice thereof, or a county judge of such county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them." In brief, this construction was that the object of preserving these ballots was to permit their examination, but not a recount, unless the tally sheet, as primary evidence, was involved, or a proceeding in the nature of quo warranto was taken by a counted-out candidate for the purpose of establishing his title to the office. Excluding the latter possibility, it is difficult to see what object the Legislature had in preserving ballots for six months for examination if a recount was not to follow. The language of the statute would seem to need no construction when it provides that within the statutory period of six months these boxes "may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county." Why should the Supreme Court, or a justice thereof, or a county judge, exercise the power here vested in it and them if it was for the mere purpose of a useless examination? The unanimous decision of this court in Matter of Stewart, supra, holding that the opening of these boxes was "in order to determine the actual vote cast," is a reasonable construction and gives full force to the statute as written.

While we are aware that the present dissent cannot change the decision about to be made, we prefer to be recorded as voting against a construction that emasculates the election law and, as it seems to us, ignores its plain provisions. In the dissenting opinion in People ex rel. Brink v. Way, 179 N. Y., at page 192, 71 N. E. 763, it was said: "With the boxes opened it is a mere question of arithmetic to ascertain the result with absolute accuracy. No discretion is possible. No decision of a question of fact is required, and nothing but the purest ministerial duty is to be performed. When it properly appears that this ministerial duty has not been accurately discharged, and that the ballots have not been counted in the manner required by law, or if it appears that they have not been counted as they were cast, whether through fraud, ignorance, or accident, the court has power to command 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 which the statute casts around the process. This evidently was the primary object of the Legislature in enacting that the ballots should be preserved. With the new evidence now attainable for the first time, the opportunity for fraud or mistake is reduced to a minimum, provided the ballots, when preserved, may be promptly recounted in a proper case. No statute is needed to expand the common law so as to meet the new situation created by the preservation of the ballots, for its flexibility and its ability to 76 N.E.-3

grasp new conditions has always been its strength and pride. When it finds a ministerial duty not done, it commands that it be done. * * * The novelty of requiring a recount by mandamus is owing to the fact that never before could a recount be had. When the Legislature ordered the ballots preserved they opened the door to the writ and invited it to enter. The statute makes it possible for the first time for the court to order the election officers to recount and observe the law in so doing. For the first time they can be compelled to do their duty. The writ cannot be issued by the judges authorized to order the ballot boxes to be opened, but only by the Supreme Court, so that the danger of abuse is improbable. The risk is no greater than any citizen may have to run with reference to his life, liberty, or property. Our decision in the Stewart Case, supra, establishes every principle required to affirm the order we are now considering."

The present law has many defects, particularly in regard to the form of the ballot and the mode of voting the same, and radical amendments are required to secure a fair election without disfranchising a large number of voters by reason of complicated provisions that are not readily understood. If it is to be the settled construction of the election law that the ballots, locked and sealed in the ballot boxes for six months after an election, cannot be recounted save in an action of quo warranto, which may drag for years through the courts, a new election law cannot be too soon drafted and enacted. It will certainly be a great disappointment to the citizens of the city of New York to be assured that they are in little or no better position in case of an alleged fraudulent count than under the old election law, when the burning ballots and memoranda formed a part of the bonfire which celebrated the current victory.

CULLEN, C. J., and O'BRIEN, HAIGHT, and WERNER, JJ., concur with GRAY, J. BARTLETT and VANN, JJ., dissent in opinion.

Orders reversed, etc.

(183 N. Y. 173)

LA MONTAGNE et al. v. BANK OF NEW YORK NAT. BANKING ASS'N. (Court of Appeals of New York. Nov. 21, 1905.)

1. PARTNERSHIP-SALE OF ASSETS-LIABILITY OF NEW FIRM.

Where a firm transfers by a written instrument all its assets to another firm, and covenants that they are worth a certain sum over its liabilities, such transfer is subject to the payment of the debts of the old firm.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 323-325, 489-492.]

2. SAME-LIABILITY FOR DEBTS OF OLD FIRM. Where assets of an old firm are transferred to a new firm, it is under obligation to pay the debts of the old firm, at least to the extent of what was realized in good faith therefrom. [Ed. Note.-For cases in point, see vol. 38, Cent. Dig Partnership, §§ 489–492.]

3. SAME MISAPPROPRIATION OF ASSETS.

On the sale by a firm of its business and a transfer of all its assets to a new firm, a check representing the contribution of a special partner to the capital was in the presence of all the members of the new firm indorsed for deposit by a common member of both firms in the name of the new firm, and deposited to the credit of such firm the day before the statement of partnership was filed; the bank being notified that the certificate of partnership, though signed, would not be filed until the next day. Held that, where a check was drawn on such deposit by one of the general partners of the new firm and applied to an overdraft of the old firm, it was not a misappropriation of the assets of the new firm, authorizing the latter to sue the bank to recover the amount thereof, though the new firm was not authorized under its articles to do business until the next day; no notice of such fact being given the bank, and the circumstances not being of such a character as to put the bank on inquiry as to such provision.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edward La Montagne, Jr., and others, against the Bank of New York National Banking Association. From a judgment of the Appellate Division (88 N. Y. Supp. 21, 94 App. Div. 219), reversing a judgment for plaintiffs and dismissing the complaint, plaintiffs appeal. Modified.

The undisputed facts, as stated in the dissenting opinion and approved in the prevailing opinion below, are as follows:

"On and prior to June 22, 1892, three of the plaintiffs, Edward La Montagne, Jr., Herman Clarke, and Wallace B. Smith, were carrying on business as brokers under the firm name of La Montagne, Clarke & Co. On the 22d day of June, 1892, the three plaintiffs above named, together with Elisha M. Fulton, Sr., and Elisha M. Fulton, Jr., entered into written articles of copartnership for the formation of a limited partnership under the laws of the state of New York to do a general brokerage business. The articles recited the facts that the members of the old firm, together with Fulton, Jr., were to be general partners, and Fulton Sr., a special partner; that the limited partnership should begin upon the 23d day of June, 1892, and, unless sooner dissolved, should continue for the term of 10 years; that the special partner should contribute as his share of the capital of the limited partnership $200,000; that the partners La Montagne, Clarke, and Smith should contribute to the capital of such limited partnership the sum of $100,000, which should be so contributed by transferring to said limited partnership all of the property, assets, and good will of the former partnership of La Montagne, Clarke & Co.; and in these articles the three members of the old firm covenanted that such property and assets, so transferred by them, were

worth, and within one year would yield in cash, over all the liabilities of the old firm, the sum of $100,000. On the same day all the partners of the new firm united in a certificate as required by the laws of the state of New York to form a limited partnership, stating that the same would commence upon the 23d day of June, 1892, and terminate upon the 1st day of July, 1902. Elisha M. Fulton, Jr., also made an affidavit upon the same day, which was filed with the certificate, that the sum of $200,000, specified in said certificate to have been contributed by Elisha M. Fulton, Sr., had actually been paid in cash.

"Upon the same day all the partners of the new firm met at the office of the old firm, which office was thereafter to be the office of the new firm, and Elisha M. Fulton, Sr., the special partner, delivered his certified check for $200,000, payable to the order of La Montagne, Clarke & Co., to Mr. Clarke, who indorsed it 'for deposit' and signed the firm name thereto. Thereafter, and about 2 o'clock in the afternoon of this day, Clarke and Fulton, Jr., went to the banking house of the defendant, taking the certified check with them, and they there had an interview with Mr. Mason, the cashier. The old firm had a running account at the bank, and Mr. Clarke introduced Mr. Fulton, Jr., to the cashier as a new member of the firm, and said to Mr. Mason that the $200,000 check was the capital of the special partner, Mr. Fulton's father. An account was then and there opened with the new firm by depositing the check to its credit, and the cashier informed one of the bookkeepers that the new firm was to take the place of the old firm, and that the latter's account would be eventually closed out. The signature book was then brought in, and Mr. Fulton, Jr., signed therein the firm and his name also. Mr. Fulton, Jr., then said to Mr. Mason that they were making the deposit that day, although the firm did not expect to commence business until two or three days thereafter; that they had just signed the papers, but that the certificate could not be filed until the next day, as it was too late, and the firm really would not commence to do business until several days thereafter. Mr. Fulton, Jr., also told Mr. Mason that he was going in as a general partner, but that his father, whose check they had just deposited, was to be merely a special partner. At the close of the banking business upon the same day, June 22, 1892, the old firm had overdrawn its account $50,593.79, and a messenger from the bank was sent to the place of business of the old firm, who notified the firm to make good its account. Thereupon one of the general partners of the new firm, other than Fulton, Jr., drew a check upon the new firm for $60,000, which was sent to the bank with a deposit slip, made out by the general partner, Smith, and a deposit made of it to the credit of the old firm, thereby giving the old firm a balance on hand in its account of $9,406.21.