The principal error ■ complained of by appellants, and the only one of a serious nature, was the direction of a verdict by the trial court in favor of the relator, and. so disposing of the case- as a question of law on the evidence. I think this was clearly error. The-tally sheets and the certificate of inspectors made a prima facie *183case that the machine registered 133 votes for the relator. The tally sheets and inspectors’ certificate were regularly made and could not be as a matter of law declared void and ineffectual upon the testimony of witnesses who claim to remember to have heard the chairman call the number at 140. Of the many people present at the reading of the machine registry by the chairman, one claims to have seen the number 140 upon the registry; three others claim to have heard 140 called by the chairman. Hone of the witnesses were able to state the vote as called by the chairman for any other office, though the vote for State, county and city offices were called in their order. Ho reason is, given why the vote for mayor should have been remembered rather than the vote for other officers. Hone of the witnesses are shown to have any more interest in the vote for mayor than for any other candidate. The election was held Hovem'ber fourth. The trial began January fifteenth. The jury under such circumstances were not bound to accept the recollection of these witnesses as conclusive against the tally sheets and the certificate of the inspectors made immediately after the election. One poll clerk made a memorandum at the time of the reading of the machine counters by the inspector; from this the. tally sheets were made, one by each poll- clerk. These were taken by the inspectors as the basis of their certificate, and the vote 133 for the relator was by all of them certified as the vote recorded by the machine. It is true the tally sheets were not by them compared with the machine counters, but if this vote did not accord with the then recollection of the inspectors it would be reasonable to suppose that some one of them, would have suggested a comparison with the machine counters. The jury might or might not have found that the tally sheets were right. They should have been permitted to pass upon the question.
The judgment appealed from should be reversed, without costs to either party, and a new trial granted;
Parker, P. J., concurred ; Chase, J., concurred in result; Chester, J., concurred in memorandum; Smith, J., dissented.