As to the first question certified, the order of the Appellate Division was, plainly, right in confining the plaintiffs' proof as to errors, or frauds, in the counting of ballots to those election districts, which were specified in the schedule of their bill of particulars. The complaint alleges, in the most general terms, that in every election district in the city ballots cast for Hearst were counted for McClellan; that illegally marked ballots were counted for McClellan; that ballots cast for Hearst were not counted; that votes were returned for McClellan which had not been cast at all; that men had been allowed to vote for McClellan who had not registered, and that others had been permitted to vote more than once for McClellan. There are 1,948 election districts in the city, as to which these general charges of errors, or of fraud, would apply. Upon the application of the defendant, McClellan, the attorney-general was required to serve a *Page 354 bill of particulars of the allegations of the complaint. There was no opposition to the order and there was no attempt at compliance with its requirements. Subsequently, upon an application to preclude the attorney-general from giving any evidence in support of the allegations, as to which he had been ordered to serve a bill of particulars, an order was made, directing a bill of particulars to be served by a certain date and that, in case of default therein, the plaintiffs would be precluded from giving their evidence. A bill of particulars was, then, served, wherein the attorney-general specified a certain number of election districts and, opposite to each, gave the number of ballots, which were claimed to have been miscounted. Thereafter, a further application was made that the plaintiffs be ordered to more fully comply with the previous order; which application was denied. The Appellate Division has reversed this order and has granted the application, to the extent of precluding the plaintiffs from giving any evidence of fraud, error, omission or mistake, as charged, except with regard to the election districts specified in the schedule of the bill of particulars.
The granting of the order in question was in conformity with the provisions of section 531 of the Code of Civil Procedure. That section provides that the court may "direct a bill of particulars of the claim of either party to be delivered * * * and in case of default the court shall preclude him from giving evidence of the part or parts of his affirmative allegation of which particulars have not been delivered." The effect of the statutory provision is to leave it entirely discretionary with the court, in which the trial is to be had, whether to order a bill of particulars in a case; but, if the order is made, compliance is compelled by the command to preclude the giving of any evidence as to the particular allegations involved, in the case of default. With the exercise of the discretion of the court below, this court may not interfere. (Dwight v. Germania LifeIns. Co., 84 N.Y. 493.) Clearly, the order called for nothing except what may be presumed to be within the knowledge of the attorney-general. Presumably, *Page 355 that officer, in bringing this action to oust the present incumbent of the office of mayor of New York, because of fraud, or errors, in the conduct of the election, or in the returns of the votes cast, acted upon information received and was possessed of some facts; else, his action was highly improper and unwarrantable. It was manifestly proper, and necessary to the attainment of justice, that he should be made to state with particularity such facts as justified his claim. The defendant was entitled to know what facts in each election district had affected the result of the balloting therein and the particular respects in which the law had been violated. He ought not to be obliged to come to trial upon the general allegations that, in every one of the 1,948 election districts of the city, there were committed errors, or frauds. For the conduct of elections, the statute has made provision, as to officials and clerks, and as to the methods of procedure for the prevention of frauds, or errors, in the casting, or counting, of ballots and in the making of the returns of the election. The defendant holds a certificate of his election received from the officials, whose duty it was to declare and certify the result of the election. It would, in my opinion, be highly unjust if his title to the office, presumptively good in law, could be assailed and he be compelled to come into court to try the question of title upon merely general assertions of fraud and error. It would be intolerable if the attorney-general, acting upon his own initiative, or if any defeated candidate for office, may maintain such an action upon a general averment that a candidate other than the certified incumbent of the office had been elected and that the result of the election was brought about by fraud, error or mistake in every election district. If the rule were otherwise than as stated by the Appellate Division, it becomes possible to throw the result of any election, state or local, in doubt upon vague and wholesale assertions. It would tend to encourage the maintenance of such actions and to the creation of a spirit of unrest.
I think that the decision of the Appellate Division, that the plaintiffs should be precluded from giving evidence upon *Page 356 the trial, except with regard to the election districts specified in their bill of particulars, was right and an exercise of a wise discretion.
As to the other question certified, "whether in such an action any ballot box may be opened and its contents recounted, without preliminary evidence tending to show some misconduct, error, omission, or fraud in the counting, or canvassing of the vote, or in the returns", I think that the question is not one, which should be addressed to this court. That question, as well as another one, as to where shall rest the burden of proof upon the trial, are requests for statements by this court as to what rulings shall be made upon the trial of the action. This court has no original jurisdiction. Its jurisdiction, as prescribed by the Constitution of the state and by the statute, is limited to the review of questions of law. There is no warrant in the law for the submission by the court below to this court of its doubts as to what rulings should be made in prospective trials of actions. There is neither reason, nor propriety, in assuming to advise the trial court how to proceed with respect to the opening of ballot boxes and to the recounting of the ballots. The competency, or relevancy, of the evidence, offered as a foundation for causing such an examination, are for the trial court to pass upon. If errors are committed, they can be reviewed upon the appeal from the judgment. That the case is of undoubted importance furnishes no reason for this court to assume a function, which, in a less important case, it would unhesitatingly declare improper to exercise.
CULLEN, Ch. J., WILLARD BARTLETT and CHASE, JJ., concur with HAIGHT, J.; VANN and WERNER, JJ., concur with GRAY, J.
Ordered accordingly. *Page 357