#### Matter of the Application of Robert B. Ward and Monroe J. Fischer to Review, Pursuant to Section 56 of the Election Law, the Action, etc., of Inspectors of Primary Election in the 16th, 17th and 18th Assembly Districts of Kings County.

(Supreme Court, Kings Special Term for Motions,

October, 1912.)

Election Law — neglect of inspectors of primary elections in performance of duties — opening of ballot boxes and enrollment books examined—> certificate issued to candidate lawfully elected.

The action or neglect of inspectors of primary elections in the performance of their duties as prescribed in article 4a of the *16Election Law is subject to review under section 56 of said statute.

Where it is probable that occurrences in relation to the statement 'of the result of the canvass of the vote for senator were due to ignorance and neglect in the performance of duty by certain of the inspectors of primary election in the assembly districts composing the eighth senatorial district, the court will order the ballot boxes opened, the enrollment books examined, the true result adjudged, the boards of inspectors of election to reconvene and make and file a statement of said result, and a certificate issue to the candidate lawfully elected.

Application to review action of inspectors of primary election.

Joseph Eicchia, for petitioners.

Melville J. France, for Charles I. Stengle.

Archibald E. Watson, corporation counsel (James D. Bell and Charles J. Druhan, of counsel) for inspectors.

Stapleton, J.

The moving papers do not show illegalities in the primary election which would change the result in relation to the candidate for member of assembly in the sixteenth assembly district, and, in so far as the motion affects the nomination of Charles I. Stengle, the motion is denied.

The moving papers do show neglect or illegal action on the part of certain inspectors of primary election in the assembly districts of which the eighth senatorial district is composed, in relation to the statement of result of the canvass of the votes for senator.

I am bound to say, however, that they do not satisfy me that such neglect or illegal action necessarily sustains any suggestion of fraud. It is probable that the occurrences are due' rather to ignorance and neglect in the performance of duty.

There is no obvious reason why the Eepublican inspectors should have fraudulently aided an opposing candidate, and no motive for fraud is suggested in the moving papers or was claimed on the argument.

*17Ho papers have been presented in opposition; but the learned counsel representing the officials opposes the motion of the petitioners, asserting that section 56 of chapter 891 of the Laws of 1911 has made a radical change in the Election Law relating to judicial review of the action or neglect of inspectors of primary election, to the effect that the action or neglect of those officers is not now subject to judicial review. His contention is that a review is now confined to duties prescribed by article 4 of the Election Law, which article does not prescribe any duties for inspectors of primary election.

Those duties are now prescribed in article 4a.

It is sufficient for the purposes of this motion to hold.that an ordinarily and reasonably plain construction of the phrase *“*this article,” contained in article 4, would include the power to review acts or neglect concerning duties imposed upon officers not only by article 4 itself but also by the supplemental articles 4a and 4b.

Any other interpretation would be narrow and indeed destructive of other essential phrases in and features of the statute.

If this be no.t correct, the legislature has taken a backward step and the fraudulent, illegal or negligent acts or omissions of inspectors of primary election and officers or members of political conventions are no longer subject to review.

Such a design is not to be attributed to the legislature without more cogent reason.

I decide that the ballot boxes be opened; the enrollment books examined; the true result adjudged; the boards directed to reconvene and make and file a statement of the result as so adjudged; and that a certificate be issued to the candidate lawfully elected.

Ordered accordingly.