Upon the canvass of the votes cask at a town meeting in the town of Arietta on March 19, 1901, the board of canvassers rejected one vote as being void, and indorsed the same “ Marked for identification.” This application was made for a peremptory writ of mandamus'compelling the board to count the said ballot. In the order to show cause why the peremptory writ should not be granted, the justice granting the same directed the ballot box to be presented to the court at which the said order was returnable. Upon the return of the order the justice opened the ballot box and examined the ballots, and thereupon made the order directing the board to reconvene and count the said ballot. From' this order this appeal is taken.
The power of the judge at Special Term, upon the hearing, of this motion, to open the ballot box and inspect the ballots cannot here be challenged. The order directing that the ballot box be produced for opening having" been included in the order to show cause, and no motion having been made to strike this provision therefrom, the question is not here for review. Nor does it appear that upon the argument of the motion any objection was made that the judge at Special Term make inspection of the ballot.
The ballot .then being before the court all questions.of fact upon the affidavits as to what was the form of the ballot are immatérial and do not raise an issue which requires the granting of an alternative writ. The question then was a question of law, as to what *251were the rights of the parties upon the ballot which was before the court. If this question had been improperly decided by the learned judge at Special Term, this court would have the power, upon this appeal, to review his decision; but we are confronted with the difficulty that the ballot has not been produced before us, nor have we any copy thereof from which we can determine whether or not the judge properly decided that this ballot was valid. If we assume for the argument that a ballot so marked as to be void should not be counted, although indorsed “ Marked for identification,” we are required upon this appeal to assume in support of the order appealed from that the ballot was not so marked as to be void in the absence of the ballot itself or of a copy thereof. As we are unable then from the lack of a proper record to consider this appeal upon its merits, the appeal itself should be dismissed, with ten dollars costs and disbursements.
All concurred, except Parker, P. J[., dissenting.
Appeal dismissed, with ten dollars costs and disbursements.