The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-12-06
DECIDED AGAINST OSBORN.
JUDGE BARNARD SITS THE MARKED
BILLOIS SHOTLD he COUNTED.
Gov. Hin GivcS n Hearing In Albany to the
nutchess County clerk. Criticises Him
SHARPLY, and Reserves ISIS DecisIos.


Gov. HIN Gives Hearing In Albany to the
nutchess County Clerk. Crittci.es Him
Sharply, and Reserves IlI- Decisios.
rouGHKEErsiE. Dec. 5-Thc mandamus case
In which tho Dutchess county Board Of Cam
vasscrs were requested To show cause why q
pcrcmptory mundamus should not DO issued
directing tho Board to recount the votes cast
for State Senator was called before Judge Bar
nard to-day. Aftor hearing arguments bv
Augustus Schoonmaker for the State Board "
Canvassers. William Wood for the County
Board of Canvasscrs. and Robert +. Wilkinson
and Joseph Choato for tho Republican State
Committee Judge Barnard filed the following
decision:
"A Board OF County Canvassors has no
power TO refuse to count marked ballots. It Is
true that the Ballot Ieform law declares bal
lots marked for certain purposes to be void.
Tho duty Of the canvassers Ia to ascertain tho
votes given for tho candidates only. and the
law requires tho marked ballots to no counted
and the accurate result OF tho vote declared us
IL the ballot was not marked
There Is Il proceeding under which any
candidate may test the legality Of the marked
ballot, hut the county canvassers cannot find
evil intent which destroys the ballot and then
refuse to count il. There has therefore been
conccdcdly an error in tho count for Senator
for the Fifteenth district. The marked ballots
IL counted would elect Mr. Deane, the oppc-
nent OF Mr.. Osborn. II Mr. Deane was alive
presumably no would apply for d writ Of mans
damus to correct the mistake. l think his
death did not deprive tho people OF all REM
edy The result OF tho mistake remains. and
u proper count is always necessary to reach
correct result. The death OF Mr.. Deane does
not prevent any elector from setting the law In
motion to correct the mistake. The order
r,,, &c ~;Dhk 10
incident to the relief sought for by tho writ OF
mandamus. Tho State Board has a return
which does not indicate the true result. It is
proper that the Board should hold its hand
until tho record reaches it. Motion granted.
After the decision was filed Judge Barnard
granted. on Mr.. Wilkinson's application. the
formal order directing the issue OF peremp-
ton Of the canvass In the various particulars
specified IN the order t. show cause. granted
clerk OF Duchess county not to forward tho
certificate of canvass signed by Mr. Howatt.
The board of Canvassers will DO directed BY
the mandamus to act immo lately; and report
their compliance WITH f,l., the directions oy
ALBANY. Dec. 5.-Certitcates Of election were
mailed from the Secretary OF States office this
afternoon to each member OF the Democratic
State ticket. to ten supreme Court Judges. and
to twenty eight Senators. This was the. sup
NJ. and adjourned subject to the call Of the
Was devoted to tho legitimate. work Of tho
Baard. about which there is no dispute.
The vote on tho state ticket, as canrassed By
the Board, shows the following:
Tfs D sn ossn as
s5s;s Sss':
b amt snls nS ssssG asdsss skse>
SsaTtGS ar-S ksds kss
500 snS er:2 sSs xas'G p ssnes
sashsr!snd ek.t s,s .o5: Ir..ssr ,tPrSA sIssS:
%s% %s%$s , SS5s,a ,g ,Ss.i:i: fSfOe. iFsss
tcentl. Sixteenth. Twenty NTH. and Twenty
seventh. We're omitted from the general CAM
I" t on nsx Monday
returns as they have them from tho districts,
While the State cTanyas.ers we're eompetInE
tisun prctensinns OF County Clerk Theodore
gin ut o 4. NJ. and though the Governor had
travelled in IRON Elmirn after delivering Ills
prompt at his desk. ready for tho work at
'Gierk Hoffman appeared with Judge J. Rider
Cudy uni Charles CosSum as counsel, while
It'll acp a5nsS Gov H densd
RsarG %eht Vail IN
tho charge that Hoffman. as secretary OF the
county. had refused to sim the staten ,nt Of
;Sps$si Is t$ u; aSsa
the Secretary Of State. wLo was defpatsdhe q
Canva.srrs to demand tho Duchess returns
from Hoffman testified as to The refusal Of The
was the only Witness for tho defence. aud ho
neither denied his act Of insubordinution nor
did his counsel ssek in their Gedheit "a sSay
that no had deliberately refused to obey tho
OF, crs of the CanvassinG Board. OF which no
was not even member. being merely secr'-
The attcmpt to condone and evade tho
not sure the statement Of the returns WAS cor
rect, and, therefore. could not conscientionsly
af!iy his signature, was brushed aside by Cow
~ must assume. until hear to the con;
trary t9at TIL order Of the canyassing g Bara
Eis t consiitutionn p duty, the State Board OF
Canvassers has been delayed for several days
speeta S sU prtsontsd Of State Board and al
the officers elected by the vote Of the people
the -" good pleasure Of a clerk whose duty is
simply ministerial minister and who refused TO por'
The hearing lasted until o'clock. when tho
Governor took all the papers In the case do
cared tho case closed. ana reserved MS de-
HupsoN. n. Y. Doc >. There was very full
attendance at the Court House this morning
on the return of the orders To sho cause and
the errors in the election cnsas. Mr.. Hale
then stated that he bad conferred with Jndyo
Mi the election eases and to argue them to-
grthcr as they differed only in 'l,tni, and this
plan Was followed. stipulation was made.
State Board. will transfer the matter to tho
General Term at once.
order granting the several orders prayed for.
u stay shall immedately 20 granted In each
ease: that the REALTORS will print tho papers
on apprn and furnish them 50 that they can
be submitted to tho General Term IT Albany
by tho other side: that they Will receive short
notice OF argument and ASK The General Tern,
to Guss immediately upon the questions; and
viii unite with tho other side masking theCp"t
Of Appeals to Immediately take up the c1nsit-
GRAFTON Of them after the General Term Fps
REALTORS in these proceeds nss vii raise n OBJ
lection to the validity Of the G"rtllicate o, e,ec.
accord uce with tho decision of the Court OF