crosses, half crosses, excessive crosses and crosses superimposed upon numbers first written. Matter of Garvin (App. Div.), N. Y. L. J., June 9, 1915.

Mark for identification.-Under the Election Law as it existed in March, 1916 (and as it now stands), there is no such thing as a ballot marked by the voter for identification. The ballot is valid or void, to be judged by a definite test prescribed by the statute. People ex rel. Karns v. Porter (1917), 176 App. Div. 330, 163 N. Y. Supp. 103.

66

Marking of ballots by voters.-A voter of a split ticket must place his cross mark in the " voting space before the name of his candidate. If he places the mark before the name, but without the voting space," the ballot is void. People ex rel. Wells v. Collins, (1897) 19 App. Div. 457, 46 N. Y. Supp. 701, aff'd 154 N. Y. 750.

Marks apparently made by the voter in attempting to correct his own errors, as, after making the cross mark in the circle, endeavoring to erase it with a rubber or some sharp instrument or by striking the pencil through the mark, constitute an error or defacement rendering the ballot invalid. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686. Ballots having the cross mark placed in the voting space before the words "No Nomination" are invalid and cannot be counted. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686.

Ballots upon which are written with pencil in the blank column names of candidates whose names were already printed upon the ballots for the office are invalid and cannot be counted. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686.

A ballot bearing a mark made at the head of a ticket as if by a sharp instrument not a pencil is thereby vitiated and cannot be counted. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686.

When there are two candidates to be elected to an office, a ballot is not vitiated because it contains voting marks opposite the names of two candidates for the office in different columns but in the same horizontal lines. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866; motion for rehearing denied 156 N. Y. 686. If by inspection it is apparent that any part of a line forming the cross mark passed outside the circle the marking is not only within the circle' and violates the statute. Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205.

Where voters attempt to vote a split ticket, but the cross marks for individual candidates are not within the voting space, the ballots are void. Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205.

An erasure of the name of a candidate printed upon a ballot renders the ballot void. Where a mark somewhat like the letter "S" is made in one of the voting places in the blank column and attempt has been made to erase the mark, the ballot is void. Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205.

Where an elector does not write the name of a person whose name is not printed upon the ballot or for whom he desires to vote in the blank column provided for that purpose, but writes such name in the column headed "Independence League," the ballot is void. Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205.

Where a voter makes no mark on the face of the ballot but makes four cross marks on its back, the ballot is void. Matter of Houligan, (1907) 55 Misc. 5, 106 N. Y. Supp. 205.

Where but one ticket a Republican-is nominated to be voted for at an annual town meeting and consequently the official ballot contains but two columns, one headed "Republican Ticket" and the other "Blank Column," ballots which have no marks of any kind, either in the circle at the head of the Republican column or in the voting space at the left of the names of the candidates in the Republican column, nor any names written in the blank column, cannot properly be counted in favor of the candidates whose names appear in the column headed "Republican Ticket." People ex rel. Damon v. Fessenden, (1898) 31 App. Div. 371, 52 N. Y. Supp. 324.

Purple lead cannot be used to make a cross mark. People ex rel. Obert v. Bourke, (1900) 30 Misc. 461, 63 N. Y. Supp. 906.

Various ballots examined by the court, and held:

That a cross made with double lines in the voting space did not invalidate the ballot;

(The parties conceded that imperfections due to the penetration of the ballot by pencils used over a rough surface did not invalidate the ballot.)

That pencil marks which were clearly of accidental origin, did not invalidate the ballot;

That a ballot with a single line instead of a cross in the voting space was void; That marks in the voting space in addition to the cross mark rendered the ballot void;

That a figure made of many lines, but not constituting a cross, rendered the ballot void;

That where there were several lines in the voting space which were not cross marks, the ballot was void;

That a ballot with an irregular figure, not a cross, in the voting space, was void. That a ballot with a detached line in the voting space was void.

People ex rel. Karns v. Porter (1917), 176 App. Div. 330, 163 N. Y. Supp. 103.

A ballot is not invalidated by the fact that it has written on it in the blank column for town clerk the name of "John Reiley," although the printed name of the Democratic candidate for that office is " John Reilly," as the court will not presume that these persons are identical. People ex rel. Obert v. Bourke, (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

A ballot must be rejected where a cross mark thereon has been erased by a dirty rubber or a wet finger. People ex rel. Obert v. Bourke, (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

A ballot must be rejected where it has a cross mark in the circle of one party and a single short line in that of another, as the latter is a mark other than the voting mark. People ex rel. Obert v. Bourke, (1900), 30 Misc. 461, 63 N. Y. Supp. 906. A ballot is not invalidated by the fact that it has, in the party circle, several marks which cross each other at various angles. People ex rel. Öbert v. Bourke (1900), 30 Misc. 461, 63 N. Y. Supp. 906.

A ballot should be counted where the cross mark placed in the circle at the head of a party ticket is not perfect and is something more than a cross mark. People ex rel. Bantell v. Morgan (1897), 20 App. Div. 48, 46 N. Y. Supp. 898.

A ballot cannot be counted where the elector has not placed a cross mark in the voting space at the left of the name of a candidate, but has placed, in the column which is provided for the use of electors who wish to vote for persons not formally nominated, a cross mark in the voting space at the left of the blank headed "For Trustee," no name being written under the latter words. People ex rel. Bantell v. Morgan, (1897), 20 App. Div. 48, 46 N. Y. Supp. 898.

A ballot is not necessarily invalid because the marks consitituting the cross are not exactly straight, even or regular, unless there is a manifest intention to evade or violate the law. It is only where an attempt to make a distinguishing mark can be inferred that the ballot should be rejected. A ballot is not necessarily invalid because an elector in making a mark retraced the stroke of his pencil, thereby making on uneven or double line. Matter of Hearst, (1905), 48 Misc. 453, 96 N. Y. Supp. 119, modf'd 110 App. Div. 346, 96 N. Y. Supp. 341, which was reversed 183 N. Y. 274.

Ballots having, in addition to the cross mark, marks in the voting space, apparently made for identification; those having erasures, in whole or in part, made by rubber or pencil, and a ballot having an inner circle within the voting circle and containing a cross mark partially erased, are void. People ex rel. Pierce v. Parkhurst, (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

Trifling marks upon a ballot made by a voter by accident do not vitiate it. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

If lines cross each other in the slightest degree, they constitute the statutory cross mark. A cross mark with a third mark crossing it is a sufficient mark. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A straight Republican ballot, having a proper cross mark in the party circle, is not invalidated by a diagonal straight line in the voting space opposite the name of a Democratic candidate. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A ballot having a cross mark in both voting spaces opposite the names of rival candidates for the same office, but one not in question, is not wholly invalid, but it cannot be counted for that office. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A ballot having two cross marks in the voting space opposite the name of one candidate is valid. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A ballot having its cross marks partly within and partly without the voting space and so made that the lines, if continued, would cross each other but for the fact that one of them loses its identity by running into the broad outside ink border of the ballot, is valid. People ex rel. Pierce v. Parkhurst, (1898), 24 Misc. 442, 53 N. Y. Supp. 598.

A mark made on the lines of an A, crossed by a line nearly horizontal and situate, partly at least, within the voting space, is a sufficient cross mark. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 59 N. Y. Supp. 598.

A ballot having a cross mark wholly within the voting space and wholly within the space occupied by the name of a Democratic candidate cannot be

counted for a Republican candidate. People ex rel. Pierce v. Parkhurst (1898), 24 Misc. 442, 59 N. Y. Supp. 598.

In writing a name in the blank column on a ballot a cross-mark should not be used before that name. Rept. of Atty.-Gen. (1907), 555.

As to marking of ballots by voters, see also, cases cited in note to Election Law, section 368.

Ballots marked in more than one voting space before the name of a candidate for a given office who has been nominated by more than one party, are not void. Rept. of Atty.-Gen. (1914), Vol. 2, p. 370.

Where the proper cross mark has not been placed before the name of the candidate the ballot is void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A ballot containing a second cross near the name of a candidate which was not made by the voter, but caused by the heavy ink and incidental to the folding of the ballot, is not invalid. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A cross in the space before the name of a candidate written in, which space had been "blacked out" because not required by statute, does not invalidate the ballot; it is simply an attempt on the part of the voter to indicate his choice. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

Where the voting cross is placed in the space occupied by the emblem, the ballot is void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

Ballots not containing cross marks, but defective and incomplete marks that may serve for identification, are void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

A ballot having a semi-circular mark over the cross, but not a part thereof, is void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

A ballot having two crosses in the same voting space, or one cross with an attempted erasure of the other, is void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732. Flourishes at the upper end of both lines of the cross not constituting distinct lines, but made with the same impression of the pencil, constitute an irregular cross, and do not render the ballot void. Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

Erasures may render a ballot void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732.

Writing the name of a candidate in the space underneath the printed name of a candidate for the office, instead of in the blank space provided for such purpose, renders the ballot void. People ex rel. Brown v. Bd. of Suprs., Suffolk Co. (1915), 170 App. Div. 364, 156 N. Y. Supp. 205; modified 216 N. Y. 732; Matter of Brown v. Bd. of Canvassers, Queens Co., 170 App. Div. 476, 155 N. Y. Supp. 979; modified 216 N. Y. 732.

The putting of the ballot in the sealed envelope for the enrollment blank, is an act extrinsic to the ballot which will have the effect to identify it. Peo. ex rel. Brown v. Keller (1915), 170 App. Div. 324, 155 N. Y. Supp. 976; aff'd 216 N. Y. 741.

Marking ballots for constitutional delegates.- Subd. 3 of this section controls in respect to the manner of marking the ballot for delegates to the constitutional convention, and if the ballot contains a cross-mark in the circle above a party column and also a cross-mark in one or more voting squares at the left of the names of one or more delegates, or the voter writes in a name or names, the ballot should be counted for all the electors in the party group except those whose names are opposite to the names so specially indicated. Rept. of Atty.-Gen. (1914), Vol. 2, p. 371.

§ 359. Manner of voting.

When the ballot or ballots which a voter has received shall be prepared as provided in the preceding section, he shall leave the voting booth with his ballot folded so as to conceal the fact of the ballot, but show the indorsement and facsimile of the signature of the official on the back thereof, and, keeping the same so folded, shall proceed at once to the inspector in charge of the ballot box, and shall offer the same to such inspector. Such inspector shall announce the name of the voter and the printed number on the stub of the official ballot so delivered to him in a loud and distinct tone of voice. If such voter be entitled then and there to vote, and be not challenged, or if challenged and the challenge be decided in his favor and if his ballot or ballots are properly folded, and have no mark or tear visible on the outside thereof, except the printed number on the stub and the printed indorsement on the back, and if such printed number is the same as that entered on the poll-books as the number on the stub or stubs of the official ballot or set of ballots last delivered to him by the ballot clerks, such inspector shall receive such ballot or ballots, and after removing the stub or stubs therefrom in plain view of the voter, and without removing any other part of the ballot, or in any way exposing any part of the face thereof below the stub, shall deposit each ballot in the proper ballot box for the reception of voted ballots, and the stubs in the box for detached ballot stubs. Upon voting, the voter shall forthwith pass outside the guard-rail unless he be one of the persons authorized to remain within the guard-rail for other purposes than voting.

No ballot without the official indorsement shall be allowed to be deposited in the ballot box except as provided by sections three

hundred and forty-five and three hundred and sixty of this chapter, and none but ballots provided in accordance with the provisions of this chapter shall be counted. No official ballot folded shall be unfolded outside the voting booth. No person to whom any official ballot shall be delivered shall leave the space within the guard-rail until after he shall have delivered back all such ballots received by him either to the inspectors or to the ballot clerks, and a violation of this provision is a misdemeanor.`

When a person shall have received an official ballot from the ballot clerks or inspectors, as hereinbefore provided, he shall be deemed to have commenced the act of voting, and if, after receiving such official ballot, he shall leave the space inclosed by the guardrail before the deposit of his ballot in the ballot box, as hereinbefore provided, he shall not be entitled to pass again within the guard-rail for the purpose of voting, or to receive any further ballots.

Derivation: Election Law, § 106.

Cross-references.- Showing ballot so as to reveal its contents. Penal Law, § 764 (part 5, post). Person other than inspector receiving ballot. Penal Law, § 764 (part 5, post). Failure to return unvoted ballots. Penal Law, § 764 (part 5, post). Illegal voting generally. Penal Law, §§ 764, 765 (part 5, post). An elector must vote all the ballots that he wishes and is able to vote at one time. He cannot present himself more than once at the polls for the purpose of voting, and when he is reached in his turn he must once and for all exercise his right of suffrage at that election. Simpson v. Brown,. (1888) 18 N. Y. St. Rep. 781, 2 N. Y. Supp. 571.

What ballots counted. The requirement that "none but ballots provided in accordance with the provisions of the Election Law shall be counted" is to prevent the use of any other than official ballots, except only in the cases provided for in sections 89 and 107 (now §§ 345 and 360), and not to condemn as invalid official ballots which have been furnished to the electors by public officers charged with that duty for some oversight or error on their part. People ex rel. Williams v. Board of Canvassers, (1905) 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.

Ballots placed within the envelope for the enrollment blank, the envelope being sealed, are void upon the ground that they were never voted. Peo. ex rel. Brown v. Keller (1915), 170 App. Div. 324, 155 N. Y. Supp. 976, aff'd 216 N. Y. 741.

Unofficial ballots at village election.- The inspectors of an election at a village election cannot issue a poll or count unofficial ballots. If they do so mandamus will issue to compel them to reconvene, return the unofficial ballots, correct the statement of the results of the canvass and make a proper certifi cate of the result. People ex rel. March v. Beam, (1907) 117 App. Div. 374, 103 N. Y. Supp. 818, mod'f'd 188 N. Y. 266.