I concur with the conclusion of the learned judge at special term that a peremptory writ of mandamus should not issue in these cases, because it does not affirmatively appear that an inspector of election or other election officer or duly-authorized watcher, during the .canvassing of the votes, or immediately after the completion thereof, declared his belief that the ballots objected to-on this motion were marked for the purpose of identification, as required by section 31 of chapter 262 of the Laws of 1890, as amended by chapter 296 of the Laws of 1891.2 It is only when such objection is made that this summary pro*283ceeding can be adopted; but the failure to make such objection, and thus lay the foundation for this summary proceeding, does not render a ballot marked for identification a valid vote, but the statute makes such ballot absolutely void, and no neglect on the part of the inspectors or watchers should be permitted to give validity to a vote denounced by the law as void. In this case it is positively asserted that these ballots were marked, but the respondent disputes their validity, and denies positively that they were objected to at the time of the canvass. Here is a sufficient dispute as to the facts to authorize the issuance of an alternative mandamus, if a motion for an alternative writ had been made. In People v. Board Sup’rs, etc., (N. Y. App.) 32 N. E. Rep. 242, Earl, C. J., says:
“A candidate intending to proceed by mandamus under section 31 should procure an alternative'writ, so that, if there should be any dispute about the facts, that can be settled before the peremptory mandamus issue. ”
I think in this case an alternative writ, if applied for, should have issued, so that the facts in dispute, to wit, whether objection was made, or, if not made, whether the marked ballots were voted, and, if voted, whether they were marked for the purpose of identification, could be-settled. But the relator in this case cannot have that relief on this motion, as the argument of the questions involved on the conflicting affidavits is in the nature of a demurrer to the legal sufficiency of the opposing proof, (People v. Fairman, 91 N. Y. 387;) and, when that is-done, the alternative writ will not issue.
Laws 1890, c. 262, § 31, as amended by Laws 1891, c. 296, reads as follows-. “When an inspector of election or other election officer or duly-ahthorized watcher shall, during a canvass of the votes, or immediately after the completion thereof, declare his belief that any particular ballot or paster affixed thereto has-been written upon or marked in any way, with the .intent that the same may he identified, the inspectors shall write their names on the hack thereof, and attach it to the original certificate of canvass, andinclude in said certificate a statement of the specific grounds upon which the validity of such ballot is questioned. When the votes are to be estimated, and the result declared, by a hoard of county canvassers or other officers performing similar duties, such board or officers shall mention separately in the statement or certificate of canvass the number of votes-thus questioned which were cast for each candidate, and the specific grounds upon which the same are claimed to be-invalid, as set forth in the original certificate of canvass. Such ballots shall he counted in estimating the result of an election, hut, within 30 days after the filing of the certificate declaring such result, a writ of mandamus may issue out of the supreme court against the board of canvassers, or officers acting as such board, by whom the ballots were counted, upon the application of any candidate voted for at the election, to require a recount of the votes; and all questions relating to the validity of such ballots, and as to whether they were properly counted, shall be determined in such proceedings. All such ballots shall be preserved for at least one year, and until the questions raised by such writ shall be finally determined. Election boards and boards of canvassers shall be continued in existence for the purposes of such proceedings. ”' Section 35 of the same act provides: “No voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him. No person shall place any mark -upon, or do any other act in Connection with, a paster ballot, with the intent .that it may afterwards be identified as having been voted by any particular person. When a ballot has been deposited in a ballot box, upon which or upon a paster affixed thereto a writing or mark of any kind has been placed by the voter or by any other person to his knowledge, with the intent that such ballot shall afterwards be identified as the one voted by him, the same shall he void and'of no effect."