New-York tribune., 1918-12-04
Appellate Division
Delays Whitman's
Fight for Recount
Decision Says Governor Can
Not See Contested Ballot
Until Smith Gets Election
Certificate; Appeal Taken

The Appellate Division Of the First
Department by vote Of three 70 tvo
yesterday decided that Governor Whit
man will have to wait until after a
certificate Of election is issued to Al
fred f. Smith before he can inspect
the ballots cast in New York and The
Bronx on November 5.
The decision against the Governor
was concurred in by Justice Clarence
J. Shearn, who wrote the opinion, Jus
tice Victor J. Bowling and Justice I'd
gar S. x. Merrill Presiding Justice
John Proctor Clarke and Justice Wal
ter Lloyd Smith wrote dissenting opin-
ions. The three affirmative votes were
cast by Democratic judges. while the
two dissenting opinions we're by Re-
publicans.
Division was at once appealed 70 the
! Coprt of Appeals. Abraham s. Gilber
and Emil Fuchs, representing the Gov
ernor. are expected to AJAX the highest
! court in Albany this afternoon 10 set
a date for argument, with q reques.
that it will be heard to-day. Counsel
for Mr.. Smith, following their policy
Of DELAY and obstruction,. are expected
to ask that the argument be set down
for not earlier than Monday next.
Up to Court of Appeals
If the decision yesterday By the Ap-
pellate Division is sustained. the Gov
ernor will be shut off from an inspec-
ton of the ballots until he is out Of
Office. rf, on the other hand, the Court
of Appeals decides that the Governor
shall have permission to inspect the
ballots forthwith, he Will have time to
scrutinize the contents Of the boxes in
districts where he received less votes
than the aggregate number OF Repub-
lican election district officials and work
ers.
It IS understood the Republicans will,
if they inspect the ballots IN about ten
districts and find nothing to warrant
their suspicious that ballots cast for
Whitman and Erwin, the Socialist can
didate. were counted for Smith. inme-
djatelv abandon the recount fight, and
that the Governor will at once send
Governor elect Smith a letter of con-
graduation
In the Appellate Division yesterday
Edgar M. Cullen, former Chief Justice
, of the Court of Appeals, and Joseph
NJ. Proskauer joined with Abram /
Elkus in submitting Mr.. Smiths brief.
Justice Clarke Dissents
! In the dissenting opinion PRESIDING
Justice Clarke, with the assent OF jus
tice Smith, said:
ON my opinion there IS no Warrant
in law for the delay. The order o
Justice Philbin) should have provided
that the examination commence forth
with, in order that such examination
l be completed at the earliest possible
= moment 1t seems to me plain tina
. there is no ground for the apprehen
' sion, expressed upon the argument il
3 the matter at mar, that to permit az
0 examination of the ballot boxes would
9 interfere with or delay the canvass Of
Y the votes or the announcement of the
: result thereof No good reason has
\ been presented which satisfies my mind
o that the delay asked for should be
4 allowed. The certificate Of election
e is rarely issued before the end @
December l cannot think the cour
: is justified so to delay the applicant
j Governor Whitman's) conceded abso
r lutte right of examination"
An appeal from the appellate cour
4 of the Brooklyn district with refer
= ence to the inspection of the void an'
i defective ballots by Justice Fawcet
- also will come before the Court 0
. Appeals to-day in Albany