The petitioner was a candidate for the nomination for the office of alderman from the fifty-first aldermanic district of the thirteenth Assembly district, borough of Brooklyn, on the Democratic ticket. The opposing candidate received a majority of seventy-four as disclosed by the election officers after the count had been made. In the twenty-three election districts in the aldermanic district there were more than 1,000 ballots returned as void, blank or protested. Many ballots were protested by the watchers of the petitioner as invalid for various reasons. In many districts the election officers declined to mark for identification these protested ballots. Likewise they neglected and refused in many districts to segregate these blank, void and protested ballots and place them in separate envelopes as the law prescribes. (Election Law, § 226.) Instead, they placed these ballots, to the number of 800 or more, in the boxes so that they were commingled with the valid ballots. It is charged *377that this action on their part was deliberate in the interest of the successful candidate, so that there could be no recanvass made under the provisions of section 330 of the Election Law; and that they were advised to take that course and ignore the protests of the watchers of petitioner, in some instances by the Special Deputy Attorney-General who was present and supporting the successful candidate. There are many other illegal acts and irregularities charged, but I mention only those affecting the count.
The charges of deliberate fraud and failure to observe the provisions of law are not entirely tangible, but depend upon the inferences drawn from circumstances. Likewise, the number of ballots declared void or marked illegally and protested is not given with sufficient clarity so that it could be said that if these were rejected it would change the result, even though it were now possible to examine and canvass them. I think that if the action by .the inspectors was taken through ignorance of the law, it would constitute such legal fraud and irregularity as to justify the court in ordering a new primary election. The right of a candidate to have a legal count can be no more flouted by a defiance of law through ignorance than it may through deliberate fraud. The election officers take an oath and are bound to observe the law in all their acts, to the end that voters may fairly make their choice and have that choice recognized and recorded in the count.
The petitioner has no definite legal theory as to the manner in which a recanvass of the votes may be made. The only way that is suggested is that, as the examination of all the ballots proceeds and the void and protested ballots loose in the boxes are segregated, there may be an informal count of the valid ballots contained in the boxes. There is no legal basis for such procedure. If an attempt should be made to segregate the void and protested ballots now, it would be difficult to determine whether or not some of them were counted as valid without protest following the close of the election. It presents a situation unfortunate for the petitioner, who has, I believe, .a genuine grievance. I agree that it is now too late to direct the holding of a primary election; and the right to different relief is not clear under the statute and the facts presented in the record. Therefore, for the reasons stated, I vote for reversal and denial of the motion.
Carswell, J., votes to reverse with the following memorandum:The moving papers do not establish that any commmghng of protested, void and blank ballots with valid ballots has affected the result. There is no affidavit showing in a concrete manner that any specified number of alleged inyalid ballots among those *378thus commingled were improperly counted, although affiants were available to make such detailed affidavits if, in truth and in fact, any such improper counting occurred in an amount affecting the result. (Matter of Schwartz v. Heffernan, 240 App. Div. 851.) The failure of petitioner to make such a prima facie showing establishes that he does not have a genuine grievance entitling him to judicial action.
Johnston, J., concurs on the grounds stated in opinions by Hagarty and Carswell, JJ.
Present — Hagarty, Carswell, Davis and Johnston, JJ.
Order granting petitioner’s motion for an examination, inspection and recanvass of all the ballots cast at the Democratic primary election for the office of Democratic candidate for alderman of the fifty-first aldermanic district of the thirteenth Assembly district of the county of Kings and directing the board of elections to produce all records of the aforesaid election reversed on the law and the facts, motion denied and proceeding dismissed, without costs.