dissenting. I am constrained to differ from my brother Parker in the conclusions at which he has arrived in this case.* The grounds upon which he is of the opinion that the judge erred upon the trial relate to the charge of the judge and his refusal to charge as requested, and I shall therefore examine as briefly as the nature of the subject will admit the various propositions discussed in reference to this branch of the case.
The judge, after referring to the proof upon the trial as to the number of votes, and stating what they were proved to have been, in his charge to the jury, said: “ Indeed, it is hardly claimed, I believe, upon either side, that 652 was the entire number of votes cast for mayor. It would hardly do to assume that the return is correct for this purpose and in this particular, and not accurate for other purposes and in other particulars. I do not see, therefore, that there is any propriety in taking 336 from 652, and assuming that only the remainder, or balance left, is to be allowed as representing the true number of votes cast for Mr. Thacher.”
He then proceeded to make some remarks as to the number of votes cast for Judson and McCarty, and the whole number of votes, and said: “ Deducting, therefore, the 336 from the 729, it leaves 393 votes which might have been given, and which, for aught that appears, were given for Mr. Thacher.”
He subsequently, in the same connection, remarked: “ Taking only those who read their ballots, and the vote is 176 for Judson and eighty-five for McCarty, making a total of 261. Deducting that number from 729, the total number cast in *297that district for mayor, as sworn to by Chapman, and as appears by the poll list, and there remains a balance of 468 votes which might have teen cast for Thacher. You will notice that these two results come out the one a little over and the other a little under the number of votes returned by the inspectors as actually cast for Hr. Thacher (460). I have now given yon my view in regard to the number of votes proved. I see no reason why you should deduct the number of votes proved to have been cast for J udson and McCarty from the smaller number of votes canvassed, and not from the larger number of votes cast at that poll. There is no dispute as to the number of votes canvassed. There were but 652 votes there at that canvass; all three of the inspectors counted them and made that number. But that a larger number of votes was actually voted at that poll for mayor seems to he admitted hy counsel upon both sides. It seems to me, therefore, as I have said, that the deduction should be made from 729 and not from 652.”
The counsel for the defendant excepted as follows, viz.: “ to that part of the charge in which he said I do not understand that they are entitled to have the vote deducted from 652.” Also to “ that part of the charge in which he said yon are to deduct the number from 729, and Thacher may have the balance.” The judge did not make either of the remarks which the exceptions taken impute to him. As to the first exception, if it can be construed as covering what the judge actually said as to the propriety of deducting 336 from 652, 1 think it was not well taken, for it is plain and unmistakable that there would be no propriety in deducting the votes claimed to have heen cast for Judson and McCarty from any other sum than the total number of votes cast for mayor, which the poll list showed and which was shown by all the inspectors, as I understand, and conceded by all parties to have been 729. Why, then, should the votes claimed for those candidates be deducted from the lesser number of votes, when the returns of the inspectors show that Thacher received even more than the difference between the votes claimed for Jud*298son and McCarty and 729, the whole number of votes cast for mayor ?
As to the second exception, it will be seen, by reference to the charge, that the judge did not say at any time, as is claimed in the exception, that after the deduction was made from 729 Thacher might have the balance. It was an error, therefore, to assume that any such language was employed; and the fair construction to be placed upon the remarks made is, that after deducting from the whole number of votes, 336, the difference might have been given, or, for aught' which appeared, were given to Thacher. And after deducting those which were claimed to have been read, 261, the balance, 468, might have been given for Thacher, and, further, that it seemed to him that the deduction should be made from 729, not from 652.
I think that there can be no doubt that the judge was clearly right in saying that the deduction should be from the larger instead of the smaller number, and in the remarks that the 393 votes might have been given, or, for anything that appears, were given for Thacher. As the deduction stated was clearly proper, and the number remaining might have been or were cast for Thacher, there was no error in this respect. The position, therefore, that the judge assumed that the difference between the lesser and larger sums were given to Thacher, without regard to the canvass and, certificate of the inspectors, is erroneous. Nor was it, in my opinion, in any way proper, even if such a charge had been actually made, to submit to the consideration of the jury the question whether the 393 votes were cast for Thacher, as it was plain what the fact was from the evidence introduced. The case did not turn upon any such disputed question, and the error of the counsel consists in overlooking how the proof actually stood. If the testimony showed, as is claimed, that Judson and McCarty had received 336 votes, they were only entitled to have that number counted for them. The return showed that Thacher had.received 460, and must be taken as true, except so far as it is impeached or proved to be errone*299pus, or unless there was fraud. Now, allowing the 336 votes to Judson and McCarty, it left from the whole number cast, which was 729, a remainder of 393 votes, which certainly wras a portion of the 460 to which Thacher was entitled. The 460 votes returned for Thacher should only be reduced so far as was inconsistent with the evidence of witnesses, which had been introduced and sworn, provided that evidence was to he relied upon, for the purpose of showing the number of votes received by Judson and McCarty. In this respect the certificate should be considered as corrected; and, giving to Judson and McCarty the full benefit of the evidence, and assuming that all the votes, those which were read, as well as those which were not read, by the voters, were to be counted for them, there would be enough majority remaining to elect Thacher.
It must be borne in mind that the plaintiff held the affirmative of the issue, and was bound to make out a case. He must show affirmatively that the relator was elected, and what votes he actually received in opposition to the return of the inspectors. He was only entitled to the number of votes proved, and could not claim any beyond this. When the plaintiff proved that the relator and McCarty received a certain number of votes, it was only one step toward showing that he was elected, and it did not impose upon Thacher the burden of showing wliat votes he had received independent of the certificate. It only affected the return to the extent in which it proved that it was erroneous, and not beyond this. Thacher had a right to rely on the return, and, allowing to the plaintiff all wffiieh he claimed, was entitled to the remainder of the votes cast. There was no proof that either the plaintiff or McCarty had the remainder, as they only proved a lesser number, and the return gave more than the remainder to Thacher.
In any point of view in which the exceptions to the charge which have been discussed may be considered, I think that there was no error.
The exception taken to the charge of the judge, to the effect that “ nothing authorized the jury to reject the returns other than the conviction in their minds that it was the *300result of intentional fraud upon the part of the inspectors,” was not, I think, well founded. This precise language was not used by the judge; and the part excepted to must be considered in connection with what was previously said upon the subject. The judge stated that it was claimed that there was intentional fraud on the part of the inspectors; and if it was shown that such was the fact, that the jury were “ at liberty to reject the return entirely on that account.”
He then proceeded to discuss the question as to what constituted fraud, referred to the testimony as to what took place when the canvass was had, to the circumstance of the rejection of one ballot and putting another in the box when two had been given to the inspector, and to the refusal to admit persons into the room where the canvass was going on, and concluded his remarks on this subject as follows:
“ It is for you to bear in mind that these are matters bearing upon the question of intention. They are not necessarily conclusive as to fraud in the case.
“ The principal event in the history of this canvass, that attracts attention upon this question, was the going out of the light, and what took place at that time. I do not think I should detain you here to discuss that transaction in detail. I leave that for your consideration. You are to find whether fraud was committed. I do not speak of the misconduct of outside parties; hut you are to examine and see whether intentional fraud was committed by the inspectors. I can see nothing else than the intentional fraud of the inspectors which would justify you in entirely setting aside the canvass.
“ It must be a conviction in your minds that there was intentional fraud on the part of the inspectors, and such a fraud as altered the result, that is necessary in order to set aside the entire return.”
The exception relates to the last portions of the charge quoted, if it is at all available, and these had special reference, as will be seen, to what occurred when the light was extinguished. It was not an independent proposition alone and of itself, but a remark made at the close, after the judge had *301commented on all the other portions of the ease, and without any apparent intention to put the decision of the entire case upon any such ground solely. I think that the language employed in connection with the evidence was sound, and as favorable to the plaintiff as the facts warranted, for the evidence was quite strong that the inspectors had acted throughout in entire good faith. As public officers they were sworn to perform their duty. They were present during the few seconds which transpired when the room was in darkness, with their hands on the ballots, seeking to protect the same, and it is difficult to see how any change could have been made, or fraud have been committed, without their assent and connivance. The evidence did not prove that any person outside interfered with the ballots, or added or subtracted a single vote from the table. If it was done, the inspectors must have been participators in the fraud beyond any question, and the court went so far, upon being requested, as to charge that the jury had a right to find that fraud was proved, within the meaning of the law, when they found, from the evidence, the existence of circumstances from' which fraud is a natural and probable inference.
The principle laid down in this portion of the charge excepted to was intrinsically right in the abstract, as the case stood; and in the absence of direct proof that fraud had been perpetrated by the introduction or abstraction of ballots, and in the face of the fact that the inspectors, acting under oath, had determined to the contrary, no other safe rule could have been adopted. If any circumstances did exist from which fraud might even be inferred, the jury were allowed, by the answer to one of the requests to charge as already stated, to take them into consideration. In view of all the facts and circumstances presented, I am of the opinion that the charge in this respect was clearly correct, and the true rule was laid down.
In connection with the exception last discussed, my brother Parker has considered the seventh request made by the plaintiff’s counsel to charge the jury, which was refused by the judge, and to which refusal it is claimed an exception was *302taken. It is as follows: “If the jury believe from the evidence that, preceding or during the canvass of the mayor’s box, ballots for mayor were either illegally abstracted from the box or table, or placed in the box or on the table, and it is entirely uncertain to what extent this was done, thén the returns should be rejected, and each candidate credited only with the votes otherwise proved to have been cast for him, although none of the inspectors were concerned in the transaction.”
It bears somewhat upon, and it is, perhaps, appropriate to examine it, therefore, as identified with the charge in regard to intentional fraud by the inspectors. It will be observed that it is broad and comprehensive, and required the judge to hold that if any number of ballots, however small, even more than a single ballot, had been illegally abstracted or placed in the box, so as to render it uncertain to what extent this was done, the return should be rejected and the parties be left to prove what votes they had received. No matter whether it changed the result or not; no matter whether it was sure beyond contingency who was the successful candidate, according to this rule the slightest variation or inaccuracy, which cast a doubt upon the subject, would authorize a rejection of the return. .Nothing would be left to the honest judgment of the inspectors if this were the rule, and, in the confusion incident to sutili occasions, it would present opportunities for contests when there were no real grounds, thus transferring the canvass to the forum of the courts, from the place which the law designates. The court had already stated that fraud of the inspectors would justify the jury in disregardingthe return, and I think this portion of the charge comprehended and covered any slight irregularity or error of the character indicated. If the evidence showed fraud of the inspectors, in the canvass, or by ignoring plain rules of law and integrity which should govern their action, then of course it should be vacated. And this very rule was embraced in the charge. But if the doctrine can be maintained, that the misconduct of outside parties, who, in the interest of one br *303more of the candidates, are induced to commit a fraud, without the knowledge or acquiescence of the inspectors, which in no way alters the result, can vitiate and destroy a return of a canvass, it would inevitably lead to the grossest of abuses. While mistakes should be corrected and the return varied as the judge did charge, when there is no evidence of fraud by the inspectors nor any testimony showing that ballots had been changed or interpolated, no good legal reason exists for setting aside the return. It is an entire mistake to assume that this request to charge embraced a case where the proof showed that ballots had been taken away and others put in their places, so that the result of the voting was rendered uncertain. Ho such proposition was embraced in the request made, and no such state of facts was presented. If such had been the intention of the counsel, he should have so expressed himself. As he did not, we cannot enlarge the character or effect of the language employed in the request, nor are we at liberty now to determine any proposition in that form.
It should be a strong and clear case of fraud, which otherwise. could not be corrected, which would authorize the rejection of a return entirely. The inspectors were not vested with any such power; but when a fraud has been perpetrated, the ballots or a portion of them destroyed, or others introduced surreptitiously into the box, so as to render it impossible to ascertain the number of genuine ballots, it is their duty to certify and declare the fact. (People v. Cook, 4 Seld., 93.) If they omit to do this, and to certify as to the real state of the canvass, they would perpetrate a fraud, and the charge expressly provided against any such act. It is manifest, I think, that the request to charge was clearly erroneous, and properly refused.
The foregoing remarks cover the grounds taken in the opinion of the learned judge in favor of a new trial. The other requests to charge, I think, are mainly covered by the charge as made; and none of them, in my opinion, are well founded. Although I have examined the various requests made and the refusal to charge as if duly excepted to, it is *304exceedingly doubtful whether valid exceptions were taken to any of them within the rules laid down in 40 N. Y., 550; 45 id., 129, 137, as it appears that the attention of the court was not called to each one of them separately after they had been handed to the court.
■A number of other questions are raised by the learned counsel for the plaintiff, as to the rulings of the judge upon the trial, but I am unable to discover any error in any of the decisions made in regard to them. "While it would be more satisfactory to discuss them at length, the limited time intervening before the commencement of another term prevents the performance of such a task. Suffice it, therefore, to say, that after a careful investigation and full consideration of the various points raised, I am satisfied that the case was well tried at the circuit, that no errors were committed by the judge; that a new trial must be denied, and the judgment and order affirmed, with costs.
Judgment and order reversed.
The opinion of Justice Potter was not given until after the dissent ing opinion of Miller, P. J., had been delivered.