#### The People of the State of New York, Respondent, *v.*George B. McClellan, Appellant, Impleaded with William R. Hearst, Defendant.

First Department,

February 7, 1908.

Election — quo warranto to oust public officer — bill of particulars as to' districts in which votes,were illegally cast — particulars as to results of opening ballot boxes not required.

When in an action of quo warranto brought by the Attorney-General for the purpose of ousting the mayor of the city of New York from office upon the ground that illegal votes were counted in his favor and that persons not registered were permitted to vote, etc., the plaintiff has Tieen ordered to give a bill of particulars as to what particular districts of the city he expects to show the fraud or errors alleged in the complaint, and has served particulars which though not fully complying with the requirements of the order, are stated by him to be as precise as he is able to furnish, the defendant’s motion that the plaintiff he required to give more specific particulars as to the districts in which said frauds were perpetrated, or in default be precluded from giving evidence of miscounts in districts not named should be granted.

So, too, he should be required to give particulars as to voting by unregistered persons and as to duplicate votes cast by any person, as evidence on these subjects can be obtained outside the ballot boxes, and in the absence of such particulars he should be precluded from giving'evidence thereof.

But while the particulars should specify the districts in which it is claimed that frauds and irregularities occurred, and the proof should be limited to districts so specified, it would be inequitable to require particulars as to the actual state .of the vote in each district as the same will be disclosed upon the opening of the ballot boxes.

Appeal by the defendant, George B. McClellan, from an order of the Supreme Court, made at the Mew York Special Term and entered in the'office of the clerk of the county of Mew York on the 8th day of January, 1908.

*216
      *Eugene Lamb Richards, Jr.,*for the appellant.

*Olcvrence J. Shearn,*for the respondent.

Scott, J.:

The defendant McClellan' appeals, from an order denying his motion that tlie Attorney-General, representing the plaintiff, be precluded froiu giving any evidence of .the allegations contained in paragraph or subdivision VI of the amended and supplemental complaint; that he be required to more fully comply than he had done with the order of October 31, 1907, by giving further particulars of the allegations contained in paragraphs IV, VII. and VIII of the amended and supplemental complaint ; that he be required to give further particulars of the allegations contained in' paragraph V of said complaint, and that in default of giving such particulars he be precluded from giving any evidence.of any miscount of votes in any election district respecting which full particulars are not delivered.

The action -is in quo warranto brought by the Attorney-General upon his own initiative; without the interposition of any relator, and has for its purpose the ousting of the appellant from the office of mayor of the city of New York and the installation into that office of the defendant Heai'st, who did not appear on the motion below, and takes no part in this appeal. Tlie amended and supplemental complaint above referred to, which is unverified, charges that at the general election held in the city of New York on November 7,1905, for the purpose of electing a mayor for the city, various frauds, irregularities and mistakes were committed in “ each and every district” in the said city. It is .alleged (^[ IV) that ballots which were lawfully marked and cast for ITearst for the said office of mayor were counted as having been lawfully cast for McClellan, and so included in the return ;. that (®¡f V) ballots illegally marked either in the circle at the head of the Democratic column (in which McClellan’s name appeared) or in the voting space in front of the name of McClellan, and by reason of said marking illegal and void, . were counted as lawful ballots in favor of McClellan, and so included in tlie returns ; that ("| VI) men were permitted to vote for McClellan who had not registered, and men wére permitted'to vote and did vote more than once for McClellan, said votes being counted as *217legal votes for McClellan, and so included in the returns; that (If VII) the election inspectors failed and omitted to count and return as cast ballots that were lawfully marked and cast for Iíearst; that (f VIII) votes were entered and embodied in the returns as having been cast for McClellan, which had not been voted and cast at all. It is obvious that this complaint afforded no information to the present appellant as to what he would be required to meet wdien the case came to trial, and consequently afforded him no opportunity to properly prepare for trial. A proper case was, therefore, presented for a bill of particulars *(People ex rel. Swinburne*v. Nolan, 63 How. Pr. 271), and upon appellant’s motion such a bill was ordered on October 31, 1907. The Attorney-General made no attempt to comply with this order within the time prescribed therein, nor until a motion was made by appellant on December 4, 1907, that he be precluded from giving any evidence concerning the matters respecting which particulars had been ordered to be furnished. Upon this motion an order was made opening the default of the Attorney-General, and giving him further time to serve a bill of particulars, and providing that he should be precluded from giving evidence unless within a time .stated in the order he should make and sei-ve the verified bill of particulars directed by the order of October 31, 1907.

In response to that order he served' a bill of particulars which covers many printed pages, but which does not fully comply with the requirements of the order of October 31, 1907. It is quite manifest that if the order now appealed from be allowed to stand, and the Attorney-General be neither required to give further particulars nor be precluded from giving evidence concerning matters i not particularized, the appellant will be in no better position than he was when the pomplaint was served, and the orders of October 31 and December 11, 1907, will be practically nullified.

The importance and propriety of a proper bill of particulars in the present case cannot be doubted. The city of Hew York is divided into nearly two thousand election districts, and the complaint alleges every kind of possible fraud and mistake to have been committed in each and every of these districts. W e are bound to assume that the Attorney-General based his complaint upon some knowledge, or upon information which he deemed to be reliable, and *218that.lie is in possession of, or will be able to produce, evidence to sustain the allegations of his complaint with respect to at least a sufficient number of districts to overcome the declared majority in favor of the appellant. The latter should, therefore, be apprised as to what particular districts it. is expected to show that fraud or error was perpetrated and the nature of the fraud or error claimed , to have occurred in each district. As is said by Mr. McCrary in liis work on Elections: “It is not desirable to encourage groundless or frivolous contests. If the complainants have a solid basis for their complaint they can readily specify- the facts upon : which they rely, and if they have not such solid basis it is better that they be not permitted to proceed.” (4th ed. § 437.) In *People ex rel. Swinburne*v. *Nolan*(63 How. Pr. 271) a motion was made for a bill of particulars in a - case similar to. the present, and tlie necessity and propriety of requiring such a bill to be furnished "was very clearly pointed out. The appellant having received, as the complaint concedes, a certificate of election,, is entitled to stand upon that until his right to have received it is successfully impeached, and the burden of so impeaching it rests throughout upon the plaintiff. The appellant, .however, is,entitled to know the nature of the attack that is £o be made upon his title, and the points at which it is to be attacked, in order that he may properly prepare: for trial and guard himself against surprise. Especially necessary is it that he shall be informed of the particular election ■ . districts claimed to have been affected by fraud or error.

Owing, no doubt, to the policy which prevailed-in this State from 1799 to 1895 that all ballots should be destroyed as soon as tlie count had been made and declared, we have few' precedents in this State bearing upon the course and conduct of a trial in which it is - desired to open ballot boxes and recotint or scrutinize the conten ts, ft is settled, however, upon the highest authority, that before- any ballot box can be opened for such purpose it must be shown with reasonable certainty that it has been kept undisturbed and inviolate. *(People ex rel. Dailey*v. Livingston, 79 N. *Y.*279.). And although the burden of thus showing is cast upon the plaintiff, the defendant is entitled to an opportunity to controvert the evidence in that regard.. It seems also to be well settled that.before any box can -be opened there must be preliminary evidence tending to show some -miscon*219duct, omission or error with respect to the counting or returns from the election district in which the box was used. This, rule is laid down in McCrary on Elections (4th ed. § 435), and is supported by a number of decisions in other jurisdictions than our own. (Kneass’ *Case, 2*Pars. [Penn.] Eq. Cas. 571; *Bertolet’s Case,*3 Penn. Dist. Rep. 643; 15 Cyc. 429, and cases cited.) In *People ex rel. Dailey*v. *Livingston (supra)*the late Judge Jasper W. Gilbert, who presided at the trial, ruled “ that the contents of no box should be allowed to be recounted without preliminary evidence' tending to show some misconduct on the part of the canvasser, or error or omission or evidence tending to that effect in the returns.” (See Court of Appeals Cases, vol. 663, Ho. 1, fol. 128, in H. Y. State Law Library ; also casein library H. Y. City Bar Assn.) This ruling was ^referred to and quoted in the opinion in the Court of Appeals without express approval or disapproval. That court may be said, however, to have given it tacit approval because the case was sent back for retrial upon other grounds, and if the court, its attention having been called to the ruling, had disapproved it would hardly have failed to so iiftimate to save error upon that ground upon the new trial. If that rule is to be applied on the trial of the present case it is' important, in the interests of justice, that the defendant should be specifically informed as to what districts it'will be attempted to show fraud or irregularity to the end that he may be prepared, if the facts justify it, to rebut or controvert such proof. The plaintiff opposes the present motion mainly upon the grounds that the order required more precise and particular specifications than should have been required in an action like the present. It is urged on.the other hand that the plaintiff should not now be heard to question the form, of the order for a bill of. particulars, or to object to the precision and particularity of specifications called for by it, for if' the order was more stringent in these respects than it should have been the remedy was by an appeal from that order, which remedy the plaintiff omitted to pursue, and has permitted its time to appeal to expire. If this were a litigation merely affecting the parties to it this court would be justified in holding plaintiff strictly to the terms of the original- order. *(Weston*v. *Weston, No. 1,*68 App. Div. 483.) The action, however, is one of considerable public interest *220and importance, and for that reason more latitude may properly be allowed than would be allowed in a purely private controversy.

The order for the bill of particulars contained five clauses, or paragraphs. The 1st, 4th and 5th clauses or paragraphs required the plaintiff to state particularly each election district wherein, (1) ballots lawfully marked and cast for Hearst were counted as having been cast for McClellan; (2) the inspectors of election failed and omitted to count ballots that Were lawfully marked and cast for Hearst; and (3) votes were counted for McClellan wlffcli had not in fact been voted or cast at all. It is also required that there shall ' be stated the number of each of the specified ballots cast in each district, and whether straight or split ballots, and the names of the inspectors of each district who committed the faults complained of. In response to these requirements the Attorney-General has served a long table or schedule in which he has set forth by number .a great many election districts in which lie charges that one or other of the foregoing irregularities existed, without attempting to classify them, as contemplated by the order. As to many of - the districts a statement is given as to the number of votes claimed to have been . wrongfully counted, or omitted from the count, and. as to many others no such number is stated. In our opinion, while it is right and reasonable that the- Attorney-General should specify the districts in which it is claimed that frauds and irregularities occurred, and should be limited in. his proof to the districts, so specified, it would not be right or reasonable to tie him down in advance to a statement of what will be disclosed upon a scrutiny of the ballots as to the actual state of the vote in each district. The purpose of the action is to determine the truth by the ascertainment uf the facts according to law and the rules .of evidence. When the- plaintiff shall have laid the foundation for opening a ballot box, the fact as to wliat the vote actually was is to be determined by the ballots found in the box, and not by what the Attorney-General may now guess, for he cannot know what will be found to be the fact. So ' . *j*far as concerns .the particulars furnished under the three heads above recited, we are of opinion that the Attorney-General has furnished all the information he should be required to furnish, but that he should be precluded from giving evidence as to frauds and irregularities in any other election district than those which he has *221specified. As to the charges in the 6th paragraph of the complaint, as to voting by unregistered persons, and as to voting more than once by any person, no particulars whatever have been given, and no reason is suggested why such particulars should not be furnished. Whatever evidence there is on this subject is outside of the ballot boxes. Unless the appellant lias such information, he will be powerless to prepare for trial upon this specification of fraud, and for lack of particulars the Attorney-General should be precluded from giving any evidence under this paragraph of the complaint. It appears to be conceded that the bill of particulars sufficiently complies with the order in so far as concerns subdivision V of the complaint, which charges that illegally marked ballots were counted as legal ballots cast for McClellan.

The Attorney-General has verified his bill of particulars, and states that he is unable, further than he has done, to give with the particularity and precision required by the order for a bill of particulars, any other or further bill, since full and complete information is only to be had from an inspection of the ballots contained in the several boxes containing the voted ballots of said election. We can readily see that, in the nature of things, this statement is probably quite accurate. I't would be useless, therefore, to order a further bill of particulars. It follows that the order appealed from must be reversed, and the appellant’s motion granted to the extent of precluding the plaintiff from giving any evidence under paragraph or subdivision VI of the amended and supplemental complaint, and further precluding it from giving any evidence of fraud, error, omission or mistake as charged in paragraphs or subdivisions IV, VII and VIII of said complaint, except with regard to the election districts specified in the first table or schedule in the bill of particulars, without costs to either party in this court.

Patterson, P. J., McLaughlin and Clarke, JJ., concurred.

Laughlin, J. (concurring):

In concurring with Mr. Justice Scott I deem it proper to make one or two observations. On the record before us it is' not. shown that there were common errors in the count, either through mistake or design, in a sufficient number of election districts to render it probable that such errors were committed in the districts not speci*222tied. In large cities inspectors of election usually receive, in advance of the election, instructions with respect to their duties from or hy direction of the respective parties. This is calculated, to result in uniform rulings on questions arising on the count and particularly concerning the validity of ballots. If, therefore, on the examination of the ballots in the districts specified in the bill of particulars on the trial'errors in the count common to all or many districts should be found, then the plaintiff should be permitted to open all boxes containing -the official' ballots satisfactorily shown to have been preserved inviolate. in the" condition in which they were deposited therein by the inspectors on election night after coznpleting the count, and in' that event, to that end, plaintiff on. dzzly moving at Special Term to he released from the liznitation in the order as modified by this court should, I think, he accorded such relief.

Order reversed and appellant’s znotion gz*anted to the extent indicated- in opinion,, without costs to either party in this-court. Settle order on notice.