In the ballot marked with the word “ Fiske ” the inspectors might have found an intent to vote for the relator, but they did not so find, and instead, agreed on a separate return, which appeared to treat such vote as not for the relator. As there was no protest in regard to this ballot, we agree that after the inspectors had failed to find the voter’s intent to be for relator, the court in the original proceeding was not empowered to count this vote for the relator, and the order of December 26, 1917, must be affirmed, but without costs.
For the reasons stated in the opinion in 181 Appellate Division, 702, decided herewith, we are of opinion that the Denton challenge was not such a protest as authorized the subsequent orders for a recount and recanvass, and that, therefore, such order of January 7, 1918, must be reversed, with ten dollars costs and disbursements.
Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concurred.
Order of December 26, 1917, affirmed, without costs. Order of January 7, 1918, reversed, with ten dollars costs and disbursements.