become very important in case a controversy should subsequently arise as to whether delivery was made. The form of receipt in use in Erie County is as follows: I have this day received from Pennock Winspear, late Supervisor (or Town Clerk) of the town of Cheektowaga, in the County of Erie, N. Y., five hundred ten dollars and thirty cents ($510.30), being the balance of town moneys remaining in his hands as ascertained by the Auditors of Town Accounts; Also vouchers numbered nine hundred one to nine hundred fifty-seven, both inclusive, in support of his charges for disbursements, said numbers corresponding with the numbers in his cash account-which disbursements amount in the aggregate to three thousand ninetyseven dollars and forty cents; Also two bound account books, one copy Banks & Bros.' Seventh Edition Revised Statutes of New York and one copy Cothran's Law of Supervisors. Dated Cheektowaga, March 17, 1888. JOSEPH DURINGER, Supervisor of Town of Cheektowaga. § 54. When delivery of records, etc., is refused. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when thereunto lawfully required, to deliver such records, books or papers, he shall forfeit to the town for every such refusal or neglect, the sum of two hundred and fifty dollars. (8th ed.) 914, part of § 9. 1 R. S. Successor's duty to compel delivery. And it shall also be the duty of the officer or officers entitled to demand such records, books and papers, to proceed to compel the delivery thereof in the manner prescribed in the sixth title of the fifth chapter of this act, see 1 R. S. (8th ed.) 914, and to that end the fiftieth, fifty-first, fifty-second, fiftythird, fifty-fourth and fifty-fifth sections of that title, shall be deemed to apply to the officers above enumerated, and their executors or administrators. 1 R. S. (8th ed.) 914, part of § 9. Mandamus does not lie against out-going officer to compel him to account. After the term of office of a Supervisor has expired, and another person has succeeded to the office, a writ of mandamus will not lie to compel the former to meet and account with the Justices and Town Clerk of the town, under 1 R. S. (8th ed.) 899, § 4; People v. Martin, 43 How. Pr. R. 52; S. C. 62 Barb. 570. In Acton on bond is remedy for failure to account. such case the remedy of the town is by action upon the recalcitrant Supervisor's bond in the name of the town, under Laws 1866, chap. 534, to compel an account and for the recovery of any money or property of the town which he has not accounted for. People v. Martin, 43 How. Pr. R. 52; S. C. 62 Barb. 570. $55. Proceedings to compel delivery of books, etc.-appli cation If any person shall refuse or neglect to deliver over to his successor any books or papers as required by the preceding section [which is similar to the section above quoted], such successor may make complaint thereof to any Justice of the Supreme Court or to the County Judge of the county where the person so refusing. shall reside. 1 R. S. (8th ed.) 408, part of § 51. In such proceeding right to the office cannot be tried. It is undoubtedly true that in a proceeding under the above and succeeding sections, the right to an office, where such right is controverted, cannot be determined in such sense that such determination is in the nature of a final judgment. People v. Allen, 42 Barb. 203; S. C. 51 How. Pr. R. 97; Matter of Whiting, 2 Barb. 513; 1 S. C. Edm. Select Cases, 498; People v. Stevens, 5 Hill, 616; Nichols v. McLean, 101 N. Y. 536; North v. Cary, 4 Thomp. & Cook, 357; Devlin's Case, 5 Abb. Pr. R. 281; Conover's Case, 5 Abb. Pr. R. 73; S. C. 24 Barb. 587; 14 How. P. 315; Matter of Bagley, 27 How. Pr. R. 151. Still it is the duty of the officer before whom such a proceeding is instituted to examine the question of the right to the office, of each of the respective claimants, so far as to enable him to properly determine the questions involved; and, if he finds that the right of the claimant to the office is not free from any reasonable doubt, he should leave the parties to settle the question of right to the office in a direct proceeding for that purpose. People v. Allen, 42 Barb. 203; S. C. 51 How. Pr. R. 97; Matter of Whiting, 2 Barb. 513; S. C. 1 Edm. Sel. Cas. 498; People v. Stevens, 5 Hill, 616; Nichols v. McLean, 101 N. Y. 536; North v. Cary, 4 T. & C. 357; Matter of Carpenter, 7 Barb. 3037; Devlin's Case, 5 Abb. Pr. R. 282; Conover's Case, 5 Abb. Pr. R. 73; S. C. 24 Barb. 587; 14 How. Pr. R. 315; In re Bartlett, 14 How. Pr. R. 414; In re Baker, 11 How. Pr. R. 418; Matter of Bagley, 27 How. Pr. R. 151. And when, upon such investigation, it is found that the right to the office is free from any reasonable doubt, it becomes the duty of the Judge to compel delivery of the books and papers in the manner provided in the statute. People v. Stevens, 5 Hill, 616; People v. Allen, 42 Barb. 203; S. C. 51 How. Pr. R. 97. The author, while County Judge of Erie County, had occasion to examine this precise question quite fully in the case of Matter of Duringer. The opinion prepared in that case is given in a note. *JUDGE COTHRAN'S DECISION. AT CHAMBERS, April 12th, 1877, In the matter of the Petition of Joseph Duringer for an order requiring Pennock Winspear to deliver over certain books and papers. This is a proceeding under the provisions of the Revised Statutes to compel the delivery of books and papers by public officers to their successors. 1 R. S. 124. The petition of Joseph Duringer, which was presented to me on March 20th, 1877, sets forth that at the annual town meeting held in March, 1876, Pennock Winspear was elected to the office of Supervisor of the town of Cheektowaga; took possession of the books and papers pertaining to that office; entered upon the discharge of the duties of the office, and continued to discharge them until March 6, 1877. That on the day last aforesaid the annual town meeting was held in said town and that petitioner was duly elected to the office of Supervisor at such election for the year commencing on the day of said election; that the whole number of votes cast at said election was 408, of which 218 were given for petitioner, § 56. Form of petition by claimant. In the matter of the application of Joseph Duringer to compel delivery of books and papers. BY Pennock Winspear, his predecessor in office.j County Judge of Erie County: Your petitioner, Joseph Duringer, respectfully rep and 190 for Pennock Winspear-a majority of 28 for petitioner, as was ascertained and determined by the Board of Town Inspectors and Canvassers, and as the same was announced, declared and promulgated on the day of said election; that on March 13th he executed, in due form, with proper sureties, his official bond, and filed the same with the Town Clerk of said town, and on the 16th of March he subscribed, took and filed his official oath with said Town Clerk. That on March 17th he demanded of said Winspear the books and papers pertaining to said office of Supervisor, and that he neglected and refused to deliver them. On the return of an order to show cause granted by me upon such petition, Winspear appeared and filed an answer to such petition, in which he states that he was elected Supervisor of the town of Cheektowaga at the annual town meeting in 1876, and discharged the duties as such, and that at the annual town meeting held March 6th, 1877, he was, as he is informed and believes, elected Supervisor for said town for the year commencing March 7th, 1877, ending at the annual town meeting in 1878, and that he received at the election one hundred and ninety votes for the office of Supervisor, and that the petitioner, Joseph Duringer, received only twenty-six votes for said office, as was ascertained and determined by the Board of Town Inspectors and Canvassers, and as the same was announced, declared and promulgated on March 6th by said board. He denies that it was ascertained, declared and promulgated on said day, or at any other time, that the said Joseph Duringer had received two hundred and eighteen votes for said office of Supervisor, or a majority of the whole number of votes cast for said office at said election, and denies that Duringer was elected at said election. He also alleges that at said annual town meeting, the votes cast were publicly canvassed according to law, and after the same was completed a statement of the result was entered at length by the clerk of the meeting in the minutes of its proceedings kept by him as required by law, and such minutes were publicly read by said clerk to the meeting; and it was ascertained and determined, announced, declared and promulgated that he (Winspear) had received a majority of the votes cast in said town at such election for the office of Supervisor of said town, and that on March 7th he filed an official oath and official bond with the Town Clerk, resents that, on March 17th, 1876, at the Annual Town Meeting held in the town of Cheektowaga in the County It appears from the testimony adduced before me, that at a public meeting of citizens of the town of Cheektowaga, held prior to the annual town meeting on March 6th, 1877, Pennock Winspear was nominated as a candidate for election to the office of Supervisor of said town; tickets for use on election day were printed and circulated amongst the electors with his name printed thereon for said office; that 190 of such votes were cast for him; that he had been elected the year previous, and had served as Supervisor during that year. It also appears that at a similar public meeting of citizens of said town, similarly held, Joseph Duringer was, in like manner, nominated for election to the office of Supervisor for said town; that a written ticket was prepared, on which his name was correctly written, and that he applied to John H. Stock, a printer, to have a quantity of tickets printed, and that by a mistake made by the printer, his name was printed Joseph Durninger instead of Joseph Duringer; that of the tickets on which his name was thus spelled, 192 were cast at said election, and of tickets on which his name was correctly spelled there were cast 26; that he circulated the tickets on which his name was incorrectly spelled among the electors at said election. It also appears that at the annual election in said town, in the year 1874, said Duringer had been elected to the office of Supervisor of said town and served during the term of one year; that he knew all the electors of the town; that there were but two persons by the name of Duringer in the town of Cheektowaga, Joseph and his father, Paul, both of whom voted at the election in 1877, and that there was no person in the town by the name of Joseph Durninger. The Town Clerk testified, as a witness, that he acted as Clerk of the Town Board at the election and that he had written the name of Joseph Duringer on the poll list when he voted Joseph Deuringer. The poll list was produced and showed the name so spelled, and the Town Clerk testified that the name thus written was intended by him to represent the petitioner. The original canvass of the votes, as made by the Board of Canvassers, was produced before me, from which it appeared that the— Whole number of votes cast for Supervisor was. 408 190 192 26 408 The Town Clerk testified that the result of the election was not publicly read or declared by himself, or by any member of the Board, but that the Board told him privately if Joseph Durninger did not qualify within the time required by law, to declare Pennock Winspear elected. There was also a book produced by the Town Clerk in which there |