The People of the State of New York ex rel. James McAniney and Christopher Stewart, Appellants, v. Robert Vandervoort and Others, as the Board of Inspectors of Primary Election for the Fourth Primary District and Fifth Election District of the Twenty-fifth Assembly District of the City of New York, and Others, Respondents

The People of the State of New York ex rel. James McAniney and Christopher Stewart, Appellants, v. Robert Vandervoort and Others, as the Board of Inspectors of Primary Election for the Fourth Primary District and Fifth Election District of the Twenty-fifth Assembly District of the City of New York, and Others, Respondents. Use at a primary election of ballots printed upon different colored paper—peremptory mandamus not granted where the facts are in dispute. It seems, that the use, hy the respective contestants at a primary election, of ballots printed upon different colored paper, does not invalidate any of the ballots, where it appears that both kinds of ballots were approved by the custodian of the primary records. A peremptory writ of mandamus should not be issued where the rights of the parties depend upon the determination of disputed questions of fact. Appeal by the relators, James McAniney and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1900, denying their motion for a mandamus and also from an order entered in said clerk’s office on the 30th day of April, 1900, denying their motion for a resettlement of said order, in -so far as it denied their application for an alternative writ. Mark G. Holstein, for the appellants. John H. Hammond, for the respondents. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: No order for a peremptory mandamus could issue in this case, because, as appears from the papers, there are disputed questions of fact which it would be necessary to determine in the 'manner prescribed by* law before the relief asked for could be granted. The main question upon which the appeal in this case is founded is as to the fact that there were differences in the color of the paper used for ballots by the appellants and respondents. But this difference, even if it existed, does not necessarily affect the validity of the votes cast) because there is evidence tending to show that the paper upon which the ballots of the respondents were printed had the same test of authenticity as the paper upon which the ballots of the appellants were, printed. It appears from the evidence that, both had been approved by Mr. Plimley, chief clerk of the bureau of elections of the police department of the city of New York,., who was the custodian of the primary records. If there was any conflict" between the parties in respect to this matter, then, clearly,, an issue of fact was- raised and a peremptory mandamus could, not issue. The order should be affirmed, with ten, dollars costp and. disbursements. - ■ . Rumsey, Ingraham and Hatch, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.