The strong probability that the figures of this canvass had been transposed, which is now shown beyond dispute, moved relator to seek some method whereby these ballots might lawfully be taken from such ballot box and recounted. Counsel ingeniously resorted to the theory that the paper presented by the Republican challenger might also be regarded as amounting to a “ protest ” of all the thirteen ballots, so that they accordingly could be removed from the ballot box, counted, and, by being placed in the package of void, unofficial and protested-ballots, be subjected to the powers of immediate court review and recanvass.
We are, however, unanimously agreed that none of these ballots was protested within the Election Law, and that there was no breach of duty by the inspectors after they had counted them in placing them in the ballot box. The paper relied on was a “ challenge ” and was so described by the challenger who presented it. It was considered and overruled *715by the election inspectors before any votes were cast, as the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 361, as amd. by Laws of 1916, chap. 537) provides. It questioned the capacity of the military voter to vote at all, not as to the form or marking of any ballot. Having been overruled, the inspectors opened the envelope containing these military ballots, which were then “ cast ” and counted. The Election Law (§ -369, as amd. by Laws of 1913, chap. 821) provides for review of the form of ballots, and the sufficiency and effect of the voters’ marks thereon, if the ballots are objected to, so that the inspectors not only separate such ballots, but note how they are counted; and, over the chairman’s signature, indorse in ink a memorandum of whatever objection is made to the counting of such ballot. Challenges, on the other hand, are to the personal qualifications of the voter who offers to vote, and, if such challenge be sustained, his rejected vote is not subject to review in this summary manner. Furthermore, the soldier who votes under these war provisions of the statute of 1917 has in all cases to make and subscribe the oath printed upon the official envelope; so that “ if he shall take the oath tendered to him his vote shall be accepted.” (Laws of 1917, chap. 815, § 4, amdg. Election Law, § 510.) While this probably does not mean that the statement of the soldier’s residence to be entered in the poll book, or as taken from the general card register kept by the Secretary of State, would be final and beyond correction, it may fairly be taken as requiring from the voting soldier, in advance of marking his ballot, a like general oath such as the Election Law (§ 363) gives to the citizen voter, whose right to vote is subjected to challenge. No question is made, however, on this argument that the inspectors rightly overruled this challenge.
We are clear that the ballots, when subsequently counted, were not “ protested,” and, therefore, the inspectors should not have placed such ballots among “ protested, void and wholly blank ballots.” Although the order treating such ballots as protested must be reversed, the facts thereby made to appear, namely, that the result of the canvass had been transposed, will furnish a further ground for this respondent to ask from the State officials to take a quo warranto proceeding.
*716The order of January 7, 1918, is, therefore, reversed, with ten dollars costs and disbursements.
Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concurred.
Order of January 7, 1918, reversed, with ten dollars costs and disbursements.