I dissent. To authorize the granting of an order to examine the ballot boxes and them contents, compliance with the statute relative to their custody and preservation immediately following the close of the canvass of the votes should be shown. Hot only do the moving papers fail in this respect, but an entire disregard of the statute appears to have occurred. Section 88 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 62, renumbered and amd. by Laws of 1911, chap. 891, as amd. by Laws of 1913, chap. 820) provides that, after the close of the canvass of the votes at an official primary election, the ballots cast, except the protested, void and wholly blank ballots, shall be replaced in the ballot boxes from which they were respectively taken, and such boxes shall then be securely locked and sealed, and returned to the officer from whom they were received, to be by him safely kept awaiting a judicial examination thereof for thirty days, and until the final determination of any suit or proceeding touching the same.
It conclusively appears by the affidavits read in opposition to this application that the ballot boxes were not sealed and locked, as required by law. In fact, no seals appear to have been placed thereon that would prevent the boxes being opened at any time. In some instances the keys to the boxes were left in the locks, and in view of the fact that there were but two different styles of keys in use by which these boxes might *134be opened, it is evident that carelessness in this regard was of considerable importance.
Following the canvass of the ballots the boxes did not remain in the custody of any proper official pending their return to the officer from whom they were received, but were left unguarded in the polling places until they were removed the same night and the day following by employees of Keller Brothers, cartmen employed for such purpose. Said employees of the carting concern held master-keys to all the voting places, and had no official standing. During the removal of the boxes they were accompanied by no official. That the statute was disregarded in the respect mentioned appears conclusively by the affidavits of Frank Gibbons, Percy S. Lansdowne, Roscoe R. Mitchell, John T. Ryan, Paul J. Batt, William J. Beyer and Frank J. Schmidt, read in opposition to this application, and the allegations of irregularities contained in said affidavits are practically undisputed by the moving papers.
Under such circumstances, I do not think the appellant has laid a proper foundation to obtain the order appealed from, and the same should be reversed.
Order affirmed, with ten dollars costs and disbursements to the respondent Tenjost against the appellant.