Counsel differ as to the rule of construction that should be applied to the Election Law (Cons. Laws, ch. 17) with reference to the method of marking ballots by electors. This difference of opinion relates especially to two words appearing in the statute, to wit: 1. The word "single," as used in subdivision 9 of section 368 as follows: "A void ballot is a ballot upon which there shall be found any mark other than a single cross X mark made for the purpose of voting." 2. The word "straight" as used in rule 7 of section 358 as follows: "One *Page 338 straight line crossing another straight line at any angle within a party circle, or within the voting spaces, shall be deemed a valid voting mark."
It is practically impossible for a person to make a line that is technically straight without the use of mechanical appliances. The construction of the statute so far as it requires "one straight line crossing another straight line" should be liberal. In construing the word "single" the same rule of construction should apply so far as consistent with the fact that it was used by the legislature after this court, in People ex rel. Feeny v.Board of Canvassers (156 N.Y. 36), had liberally construed the general language of the statute as it then existed relating to the cross mark and also in connection with the use of the word "one" in said rule 7 of section 358 of the present statute.
Such construction should be adopted that a tremulous line drawn by an infirm elector or an irregular or curved line drawn by an elector with poor eyesight or with muscles untrained to the use of a pencil, or any single line but once crossing another single line in such a way as to substantially comply with the statute (even if it is somewhat hooked at the end or the line has been retraced and the pencil has not been kept exactly on the line at parts removed from the point where the lines cross) should not be held void.
Counsel for the parties in open court stated that there is no claim on this appeal that the disputed ballots were marked by the voters with fraudulent intent.
Applying the rules above stated we are of the opinion that the order appealed from should be reversed as to the ballots marked Exhibits Nos. 13, 15, 16, 33, 36, 58, 67, 90, 96, 124, 134, 135, 138, 147, 149 and 160, which said ballots were declared valid by the Appellate Division and which said ballots should be declared void, and said order appealed from should be further reversed as to the ballots marked Exhibits Nos. 35, 145 and 170, which said ballots were declared void by the Appellate Division, and which said ballots should be declared valid. *Page 339
In all other respects the order appealed from should be affirmed, without costs to either party.