Opinion
Argued January 13, 1944
Decided January 20, 1944
Appeal from the Supreme Court, Appellate Division, Second Department, MacCRATE, J.
A. David Benjamin and Irving Ginsberg for Thomas F. Cosgrove, appellant and respondent. Philip Jones for Ward H. Cann, as Chairman of the American Labor Party County Committee of Richmond County, and others, interveners, appellants and respondents.
Irving Rivkin and Jerome Otis Ellis for Thomas J. Walsh, respondent and appellant. Ignatius M. Wilkinson, Corporation Counsel ( Thomas W.A. Crowe of counsel), for S. Howard Cohen et al., as Commissioners of Elections of the City of New York, respondents.
In accordance with the letter and spirit of article XII of the Election Law we have given effect to the apparent intent of the voters in spite of defects in the ballots except where the statute in plain language otherwise provides. Section 306, subdivision 3, provides that a war voter in domestic service "shall mark a war ballot * * * by making a cross X mark in the square to the right of an emblem opposite the name of the candidate for whom he desires to vote. * * * He shall make no mark or writing whatsoever upon the ballot, except as above prescribed." Three voters have placed cross X marks outside of the square and to the right of the candidate's name. By no liberal construction of the statute can such votes be counted. See, also, section 308, subdivision 5, which defines the rules for counting of ballots of war voters in domestic service. The question would be different if the voters had been in the foreign service. See section 314, which regulates the method of voting by war voters in foreign service but omits the words contained in section 306 which we have italicized, and section 319, which provides rules specifically made applicable to the canvass of war ballots of voters in foreign service.
The order should be affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.
Order affirmed.