New-York tribune., 1918-12-11
Whitman Fails
TOCet Recount
Before Jan. |
Court of Appeals Af1irms
Decision of Appellate Di-
vision, lst Department
Contest Is Not Dropped
Attorneys for Governor De-
clare They Will Act When
the Certificate Is Issued

ALBANY, Dec. 1O.-Governor Whit
man has failed in his attempt to OBJ
tain an immediate examination of the
ballots cast at the November election
in New York and Bronx counties. The
Court of Appeals to-day affirmed the
decision of the Appellate Division, first
department. holding that the Governor
might not have access to the ballots
until after a certificate of election had
been issued to the successful guberna-
torial candidate, Alfred +. Smith, DEM
ocrat, elected on the face of available
returns
The Court Of Appeals also dismissed
the proceedings started by the Gov
crnor to obtain an examination of bal
lots in Richmond County. In this case
which was carried to the court of ap
peals by attorneys FOR Mr.. Smith. it
was held that the moving papers "do
not show sufficient grounds for inter
ference by the court"
Judge Crane, writing for the court,
held that since the soldier and sailor
vote had not been counted at the time
of the application. and as that vote,
when completed, might so change the
present result as to make the court
proceeding OF ITO avail. lHc supreme
Courts special term did not abuse its
power in appointing the day after the
issuance of certificate of election as
the day on which to begin the eXami-
nation. Judge Crane also said:
Furthermore, the appellant failed
to disclose any injustice that will be
done him or any right which will be
lost or impaired by waiting until the
time appointed"
TO Renew Action Next Month
Abraham S. Gilbert and Emil Fuchs,
of counsel for the Governor, said last
night that the decision of the highest
court probably will halt until January
] any attempt to lay the foundations
for contest over the apparent choice
of Alfred T.. Smith as Governor.
Mr.. Gilbert said that he and his as
sociates will proceed with the exam
ination of ballots granted in the coun-
ties of New York and The Bronx as
soon as the State Board of Canvassers
certifies the election of Mr.. Smith,
which probably will be about Decem-
ber 81. Mr.. Gilbert said that if this
examination furnished ground for the
belief that there was doubt of the
Democratic candidates election. quo
warranto proceedings would be started
to test the right of Mr.. Smith to hold
office. He added that such an action,
unless the laws were amended to
shorten it, might easily be drawn out
over the entire term of Mr. Smith.
The decision means," said Mr.. Gill
bert, that until we have voting ma
chimes throughout the state we shall
have to go through more or less tur-
moii every year to be sure of an hon
est count in close contests These ma
chimes, which have failed only once
or twice to register correctly in 80 900
trials IN counties where they have been
IN use, in some cases as long as twentv
years, should be universally adopted"
governor Whitman, at the St. Regis
SAID that as soon as he had the text
OF the decision before him he would
comment on it. He is expecting it to-
day.
George A. Glynn, chairman of the
Republican State Committee, said:
Clean Legislation Guaranteed
"The Republicans retain control of
the Legislature in each house bv a
working MAJ ority. This is a guarantee
of clean Legislation. The state finances
remain under the direction of Control
Ter Travis, who on the first of the year
begins his third term. There again
the state is fortunate, as the Con
troller's record for the last four wears
has been admirable.
" Governor Smith will have an op-
portunlty,, beginning January /, to
make good on his campaign promises" !"
Chairman Glynn received from AL
lany yesterday tabulation of the SOL
dler and sailor vote. The total for the
state is 2l,337. The vote in the five
counties of the city follows: New York.
6,983; Kings, 5,975; Bronx, 2,271;
Queens, 1868; Richmond, 286 Total
for the city, 17,O80.
1t IS roughly estimated that of the
!IOSo votes in this city Smith will
have two-thirds. and that of the 10 1000
upstate votes the Governor will have
about two thirds, increasing Smiths
known plurality of around 5000 to
about $4,000.