The right to the office in question, depended, at the trial, on the vote of the third election district of the twentieth ward, there being no dispute in regard to all the other districts. In respect to that district, the number of votes given to the plaintiff and defendant, respectively, was proved only by the statement or return of the district canvassers. If this was properly received in evidence, the plaintiff had a majority of four votes, and was duly elected. We entertain no doubt upon this question. The election laws do not in terms, declare that the return of votes made by inspectors of election, or canvassers, as they are called in the city of New York, shall be evidence in courts of justice, but they are so upon well established general principles. (Laws of 1842, pp. 109, 122, 123; Laws of 1857, vol. 1, pp. 597, 894; 1 Greenl. Ev., §§ 483, 484, et seq.; 1 Starkie Ev., 195.) In this case it seems that the number, two hundred and sixty-six, had been first written upon the statement as the plaintiff's vote; that this number was erased and two hundred and seventy-three written over it, as the return appeared when introduced in evidence. We think the plaintiff was not called upon to explain this erasure or alteration. We are to assume, because the contrary is not shown or suggested, that on an inspection of the writing, at the trial, the larger number was plainly written over the smaller, so as to leave no doubt as to the actual reading of the document, and that the alteration appeared to be made with the same hand as the residue of the statement, with the same ink, and at the same time. The law does not presume wrong where none is proved, and I think that even a private writing would be receivable in evidence where no other circumstances appear than those here assumed. But election returns are documents of a public nature, made out and filed in the proper office, under the responsibilities of an official oath, and they remain in the custody of a sworn public officer. The return in question, so far as we know, had been faithfully kept by the proper officer until he produced it at the trial, and there is no room for a presumption that it had been fraudulently altered. *Page 542
The ruling at the trial, being correct, therefore, in regard to the admission of this statement, as evidence, there was no other question in the case material to the result. The judgment must be affirmed.
All the other judges concurring,
Judgment affirmed.