#### People ex rel. Alexander B. Larkin, Plaintiff, *v.*James Palmer et al., Defendants.

(Supreme Court, Albany Special Term,

May, 1899.)

Election Law — Violations by inspectors must be shown to have been prejudicial — Failure to pass around for verification rejected split ballots.

An application by a defeated candidate for supervisor, under the Election Law (Laws of 1896, chap. 909,. § 114), for a peremptory mandamus compelling a town board of inspectors to recount ballots cast at an election, will be denied where the petitioner, although alleging that the inspectors did not pass rejected split ballots around to the other inspectors for verification as required by the Election Law, does not allege that any of the ballots thus rejected were not void.

. An allegation, that forty-three ballots were rejected as void and that upon a recount it may turn out that some of the rejected ballots were valid and that on a recount the petitioner may have a majority of the legal ballots, is insufficient to justify such a mandamus; nor will the writ be issued upon a mere allegation that certain ballots were rejected as void, as, in order to set the court in motion, it is necessary , that the petitioner present verified allegations showing that he has been aggrieved by the action of the inspectors.

Application for a peremptory writ of mandamus,

L. W. Baxter, for plaintiff.

E. A. Dox, for defendants.

Chester, J.

The petitioner procured an alternative writ of mandamus under section 114 of the Election Law (Laws of 1896, chap. 909), commanding the hoard of inspectors of the town of Richmondville to reassemble and recount the ballots voted at a town meeting held in that town on the 21st day of February, 1899, or show cause to the contrary. The defendants filed a- return to the alternative writ which raised no issue as to any material matter. When the order to show cause came on for hearing the defendants moved to dismiss the writ on the ground that it does not state facts sufficient to warrant its issuing.

*570This presents the samé question as to the sufficiency of the statement contained in the writ as though a demurrer had heen formally taken. '

Under the Oode of Civil Procedure, section 2076, the statement, of the facts contained in the writ constituting the grievance, to'redress which-it is issued, is subject to the provisions of the Oode. respecting the statement in a complaint of the facts, constituting:# cause of 'action.

The relator is bound in an alternative writ to set .forth facts sufficient to entitle him to the relief which he claims. People ex rel. Post v. Ransom, 2 N. Y. 490; Commercial Bank v. Canal Commissioners, 10 Wend. 25.

The petitioner takes no issue upon the allegations of the return, but insists that he is entitled not only upon the facts stated, in the alternative writ, but in the return, to a peremptory writ.

The writ recites in substance that the petitioner was the Eepublican candidate for supervisor at the election in question; that the whole number .of ballots'voted was 529; that Harlan P. Ives, the Democratic candidate for supervisor, was declared elected over the petitioner by a majority of ten votes; that the inspectors' did not observe the method of counting the ballots required by law, but that the inspectors and the clerks of the board each took from the whole number of ballots a certain number and counted the same and declared the result, both as to the straight and the split tickets, and each declared what he regarded as defective and void ballots without passing the split tickets or any of-the tickets from one to-the other for verification, and that out of the whole number of ballots voted the board rejected forty-three- as defective and void, and which were not counted. It is further said in the writ that upon a recount of said ballots conducted ih the manner required by law it may appear that said ballots or some of them which were rejected as deféctivé and void and were not counted may not in reality be defective and void, but ought to be counted^ and- that a 'recount is necessary to determine whether said rejected ballots or any of. them shall be counted, and that upon said recount the petitioner may have - a majority of the legal ballots voted for supervisor and not the said Harlan P. Ives.

It'will be Observed that the allegation respecting-the omission to • pass the'split ballots around to the other inspectors for verification, .as'required by subdivision 3 of section 110'of the Election Law, is not accompanied by any allegation showing that the petitioner is *571aggrieved by reason of the method pursued by the inspectors, for there is no allegation that any of the ballots rejected by the board as void were not in fact void. So that taking all the facts stated in the writ as' true there is nothing alleged showing that the inspectors arrived at a wrong result under the law notwithstanding they may have pursued an unlawful method in reaching that result. That being so the petitioner fails to show that he is aggrieved because the inspectors pursued a wrong method of canvassing the ballots; nor does the allegation of a wrong method of canvassing the ballots under the Election Law furnish ground for a writ of mandamus under the provisions of section 114.

The case then comes down to the statement in the writ that forty-three ballots were rejected as void and not counted and that upon a recount it *may*turn out that some of the. ballots so rejected as void and not counted *may*be valid and ought to be counted, and that the petitioner on a recount may have a majority of the legal ballots.

With the exception of the allegation of the number of ballots rejected as void and not counted all the rest of this statement is mere conjecture and kot proof. It might as well be supposed that on a recount it might turn out that these forty-three ballots were properly rejected by the inspectors as void and not counted or that the candidate against the petitioner might have a greater majority than the inspectors gave him. The trouble is that the writ contains no allegation or statement that any ballot rejected as void was a valid ballot; nor that any ballot so rejected should have been counted for the petitioner.

The petitioner, however, insists that under section 114 of the Election Law he is entitled to a peremptory writ upon the simple allegation that the inspectors rejected from their count certain ballots as void.

It is true, as the petitioner urges, that the statute gives the court, jurisdiction to issue a writ of mandamus to determine whether the ballot and the votes thereon, which has been rejected-by the inspectors as void, shall be counted. The statute expressly says so, but I cannot agree that the mere statement that ballots have been rejected as void, standing alone, is sufficient to entitle a candidate to a writ under the law. I think that in order to set the court in motion to exercise the jurisdiction which is given to it under the statute the petitioner must first present verified allegations showing that he has been aggrieved by the action of the inspectors. It is a matter of common knowledge that in nearly every election dis*572trict pf -the state at evéry election under the present ballqt law many ballots aré rejected as void and not counted, and if the contention of the petitioner is correct any candidate at any" election would be entitled to a writ of mandamus upon the mere allegation of the rejection of a ballot as void in any election district, regardless of whether or not he alleged a grievance by reason of the act of the inspectors in .rejecting the ballot. Courts are instituted to administer justice and to grant relief against grievances and not to sit in judgment upon academic questions at the suit of persons-who. do not come into court alleging a cause of action.

A writ of the character asked for here can only issue when a clear legal right.to it is made to'appear.' People ex rel. McMackin v. Board of Police, 107 N. Y. 239; People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y. 399.

This petitioner may have a grievance, but if so' he has not made it apparent. He has failed, in my opinion, to show facts sufficient to constitute a cause "of action or to justify the court in exercising .the jurisdiction given to it to issue a peremptory mandamus compelling this board to recount the ballots in question and .for that reason the alternative writ should be dismissed and the application for the peremptory writ denied^ with $10 costs. ■ . .

Ordered accordingly.