#### The People of the State, of New York ex rel. James H. Moran, Appellant, *v.*Elliott H. Sniffin and Others, as Inspectors of Election in and for the Fourth Ward of the Village of White Plains, and Peter Paulding, as Clerk of the Village of White Plains, Defendants. Floy D. Hopkins, Respondent.

Second Department,

January 13, 1908.

Election Law — ballots variously marked — when intention of voter , ■ apparent.

A ballot marked with a cross in the circle at the head of a party, column and having a cross in front of the name of a candidate in another party column should be counted as a vote for the latter candidate.

A ballot having crosses in the circles at the head of two party columns, but having, ' also a cross in front of the name of a candidate in one of those columns, should be counted as a voté for said candidate.

A ballot marked at the head of two party columns should not be rejected as marked for identification because there are also crosses in front of the names of two Republican candidates, and also a cross in front of the name of one Democrat, who was candidate for the same office.

Appeal by the relator, James H. Moran, from certain parts of an order of the Supreme Court, made at the Westellestér Special •Term and entered in the office of the.clerk of the county of Westchester on the 17th day of December, 1907,- passing upon, the validity of certain ballots cast at the village election of officers held in the village of White Plains, in Westchester- county, on the 19th day of Hovember, 1907,

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      *William N. Dykman [John M. Digney*with him on the brief], for the appellant.

*Henry R. Barrett [Charles H. Young*with him on the brief], for the respondent.

Gaynor, J.:

Mr. Hopkins and Mr. Moran were opposing candidates for the office of trustee of the village, the former on the Republican and the latter on the Democratic ticket. Fifteen ballots, marked from 1 to 15, were passed upon by the learned justice below. Nos. 1 and 4 were held to be void without dispute, and there is no appeal in respect of them. Nos. 5 to 11, inclusive, were decided to.have been properly counted for Mr. Hopkins, and Nos. 12 to 15, inclusive, were decided to have been properly counted for Mr, Moran. This we affirm. The claim as to each that the cross in the circle at the head of the column is not made as prescribed by the statute, but a mark by the voter to enable his ballot to be, identified, is not tenable. Each presents a case of clumsy fingers, poorly guided, very likely, by poor eyesight, making the cross as well as they could.

There remain only ballots Nos. 2 and 3. They were both returned as void by the inspectors. No. 2 was decided to be void by the learned justice below, on the ground that the intention of the voter in respect of the office in question could not be determined from it, and No. 3 he counted for Mr. Hopkins. The latter has a cross in the circle at the head of the -Independent column and a cross in front of Mr. Hopkins’ name in the Republican column. The decision that it be counted for Mr. Hopkins is correct. The decision that ballot No. 2 is void was erroneous. It has a cross in the circle at the head of the Democratic column and also in the circle at the head of the Republican column, and also a cross in front of the name of Mr. Moran in the Democratic column. This latter mark does away with the lack of intention which resulted from the cross in both circles at the head of the columns, and shows the intention of the voter to vote for Mr. Moran. There were two other offices to be filled, viz., that of two water commissioners. There is a cross in front of the name of each of the Republican candidates therefor in the Republican column, and also a cross in front of the name of one of the Democratic candidates therefor in the Democratic col-limn; *732Taking all- these, things into-consideration, the- ballot was not ' void as. marked by the voter to enable his; ballot to be identified. Such blunders cannot be construed to that 'effect,

The order appealed from is affirmed,' except that it is reversed in respect of the ballot marked Mo, 2, and it is ordered that that ballot be counted as giving one vote to Mr. Moran,

WoopwABD,. Jenes,, Hookeb and Bioh, JJ., concurred,

Order modified so that ballot Mo, 2 is- counted as one vote for Mr. Moran, and as thus modified affirmed, without costs.