#### Josiah T. Newcomb, Plaintiff, *v.*William Leary, as State Superintendent of Elections for the Metropolitan Elections District, and Others, Defendants.

First'Department,

October 27, 1908.

Elections — closing of polls — Election Law construed.

Under sections 8, 104 and 106 of the Election Law the delivery of official ballots to electors must cease at five o'clock, and no person to whom a ballot has not been delivered before that tijne can vote.

The closing of the polls under said sections should be deemed to mean the close of the delivery of official ballots to electors.

It is immaterial whether the provisions of said sections be permissive or mandatory, the election officers are bound to obey them.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.'

*Theodore Connoly*and *Daniel F. Cohalan,*for the plaintiff.

*James A. Donnelly, Deputy Attorney-General,*for the defendants.

Per Curiam:

The question submitted for determination on this application is as to the interpretation of the Election Law respecting the time for the closing of the polls. • The determination of this question depends upon the construction of sections 3, 104 and 106 of the Election Law (Laws of 1896, chap. 909). Section 3 of that act (as amd. by Laws of 1901, chap. 654) provides: *“*The polls of every general election, * * * shall be opened at six o’clock in the forenoon and shall close at five o’clock in the afternoon. There shall be no adjournment or intermission until the polls are closed. The closing of the polls shall'be deemed to mean the close of the delivery of official ballots to electors, and the electors entitled 'to. vote who have lawfully begun the act of voting before the time fixed for the close of the polls, shall be allowed to complete the act.”

Subdivision 1 of section 104 provides: “ While the polls of the election are open, the electors entitled to vote and who have not previously voted thereat, may enter within the guard-rail at the *330polling place of such election for the purpose of voting, * * * and shall forthwith proceed to the inspectors and give his name.” The delivery of the ballot to electors is, therefore, limited to an elector who enters within the guard rail while the polls of election are open. By section 106 the elector who has received a ballot as provided for by section. 104 is entitled then and there to vote, and • “ when a ' person shall have received an official ballot from the ballot clerks or inspectors, as hereinbefore provided, he shall be deemed to have commenced the act of voting.”

We think there can be no question about the intention of the Legislature. The polls are to close at five o’clock. The closing of the polls should be deemed to mean the close of the delivery of official ballots to electors. Therefore, at five o’clock the delivery of official ballots to electors must cease and no elector to whom an official ballot, has not been delivered before five o’clock Can be allowed to vote. This provision seems to be mandatory, ■ but' whether it is or not is immaterial upon this application. The election officers' are as much bound to obey a direction as a mandate.

As the closing of the polls is. fixed by section 3 of- the act (as amd. *supra)*at five o’clock in the afternoon, no elector can receive an official ballot after that time.

It follows that the proceedings must be dismissed.

Present — Patterson, P. J., Ingraham, Clarke, Houghton and Scott, JJ...

Proceedings dismissed. Present order.