(dissenting). I know of no way of bringing about a result which would truly register the choice of each elector who voted upon these machines except to have a new election. We cannot order this, a primary election not being involved. (Election Law, § 330, subd. 2.) We differ in our views as to how — under the record and the law — justice can be approximated.
As these machines were “ hooked up ” I find no course of reasoning which leads me elsewhere than to the conclusion that every vote registered on the back of the machines for every candidate except Thomas and Walsh, expressed the true intention of a voter and nothing more or less. A person who voted for Creedon, e. g., should have his vote counted whether he voted for Creedon alone or for Creedon and Thomas or Walsh. The unfortunate situation arises as to Thomas and Walsh. Every vote for Thomas registered for Walsh and vice versa whether its voter intentionally voted for two candidates or for but one. Every vote registered for Walsh when a voter turned the lever for Thomas was void and vice versa. We are determining a question arising in respect of void ballots. (Election Law, § 330, subd. 4). There were in all 1,413 void ballots for assessor in the three districts. “ If * * * for any reason it is impossible to determine the voter’s choice of a candidate or candidates for an office * * * his vote shall not be counted for such office or position * * * but shall be returned as a blank vote thereon.” (Election Law, § 219, rule 6.) It was impossible to determine any voter’s choice of a candidate as between Thomas and Walsh, whereas as to any of the other candidates there could be no doubt. The provisions of the Election Law “ apply as far as practicable to voting machines, except as herein provided ” (Election Law, § 267), and there is no provision affecting the portion of the statute just quoted.
*595Conjecture of one kind and another (the briefs offer us samples) points the way to results of various kinds. I cannot find reasonable basis for any of the suggested guesswork. With appreciation that we should “ make such order as justice may require ” (Election Law, § 330), but with a realization that exact justice cannot be arrived at in the situation presented under any solution, it seems to me (a) that every vote registered for Creedon, Matt, Kinzele and Toby should be counted for them, and (b) that under the controlling statutes the votes registered for Thomas and Walsh on the three defective machines cannot be counted and must be returned as blank votes. (Election Law, § 219, rule 6.)
Thompson, J., concurs.
Order reversed on the law, without costs, and order granted directing the boards of inspectors of election to correct their statements of canvass and returns by eliminating therefrom all votes cast for candidates for the office of assessor on the defectively adjusted voting machines. Certain findings of fact and conclusions of law disapproved and reversed and a new conclusion made.