I agree that the court at Special Term did not follow the instructions given in remitting this matter for a hearing. The proceedings on the recount and in respect to the ordering of a new primary election were entirely irregular and no definite result was obtained. We said on the former appeal (238 App. Div. 341, 344): “ We are convinced by the proof offered that there is great doubt of a free choice by a free electorate of the candidates for party position and of an honest count such as our scheme of representative government contemplates.” The record on that appeal showed acts of violence, intimidation and fraud .whereby voters were prevented from exercising the right to vote, as well as apparent fraud in the count. That there was inaccuracy or fraud in the count is now indicated by the increase in the Friedman vote even as irregularly recanvassed. The question as to whether there was fraud, violence and intimidation of voters in the election is one that has not been decided; and the petitioners have the right to have it determined, regardless of the irregular procedure adopted. The public has an interest in fair, honest elections, which should not be defeated by the jugglery of procedure. Therefore, I vote to reverse and remit the matter to Special Term for a further hearing, so that the rights-of the petitioners may be preserved and the interests of the public served.
Order granting a new primary election reversed on the law and the facts, and motion denied. The appeal from the order denying the motion for reargument is dismissed.