(dissenting). The names of about forty-five persons appear upon the copies of the registers kept by the two Democratic members of the board of inspectors in the fourth election district of the fifth ward in Albany and do not appear upon the copies kept by the Republican members. The Republican members at the close of registration refused to sign the books kept and prepared by the Democratic members, and the Democratic members likewise refused to sign those of the Republican members. The latter applied at an Albany term of the Supreme Court for an order striking the names from the books kept by the Democratic members. The court granted the order; this is the appeal therefrom. The application was made on a written and verified petition. The order was granted thereon after the filing of an affidavit presented by the Democratic inspectors and after oral argument had been made by counsel representing each group of inspectors. The petition recites: “ That on the 13th and 14th days of October, 1933, those being the first days of registration in said district, a large number of persons presented themselves for registration as qualified voters in said district whose names appear on Schedule ‘ A ’ hereto attached. That the said persons were duly and properly challenged and that your petitioners thereupon filled out a challenge affidavit for each person so challenged, and that thereafter a majority of the Board not being satisfied, in compliance with section 169, subdivision 3 of the Election Law, that the said persons *139so challenged were legally entitled to register, your petitioners did not enter their names on their respective registers of voters.
“ That notwithstanding the challenges or the fact that a majority of the Board was not satisfied that the persons so challenged were entitled to register, Perrine and Lupo, Democratic members of the Board of Registry of said District, entered their names upon their respective registers.”
The answering affidavits allege: “ that none of the persons mentioned in Schedule ‘ A ’ of the petitioners moving papers were duly challenged; that neither the persons who were attempting to challenge the persons named in Schedule ‘ A,’ nor any member of the Board of Registry, nor any other person, pointed out to any of the persons so attempted to be challenged, the qualifications which he lacked as a voter.”
The appellants ask a reversal on the grounds that the petition “ does not allege that any of the applicants for registration were challenged ‘ by any qualified voter or watcher ’ or ‘ by an inspector or member of such board/ ” and further that it appeared the board did not point out to any registrant the qualifications which it was claimed he lacked; and that the above quoted portions of the petition are conclusions and do not support and justify the order.
Inspectors of election may not act individually. “ The inspectors shall act as a board and a majority thereof shall decide questions.” (Election Law, § 160.) Section 159 directs the manner and furnishes the means by which a full membership may always be had. Section 169 governs challenges. Thereunder the board is given judicial powers.
u If the applicant shall by his answers, satisfy a majority of the board of inspectors * * * of his right to be registered, they shall register his name as a voter; if not, they shall point out to him the qualifications which he lacks as a voter and shall not register his name except by order of a court or a judge of competent jurisdiction.”
Two members of this board of four certify, and by their acts indicate, that they were not satisfied of the rights of any of these persons to be registered. Thus a majority of the board did not act and the persons are not registered and their names were improperly upon the books of the two inspectors. Any voter to whom registration -unlawfully has been refused ” (§ 331) may have recourse to the courts for relief and his name thereby placed upon all the registry books.
Such procedure makes for orderly and legal elections.
I favor an affirmance of the order.
Order reversed, on the law and facts, and proceedings dismissed.