sealed and locked. People ex rel. Brown v. Freisch (1915), 215 N. Y. 356, revg., 168 App. Div. 370, 153 N. Y. Supp. 277.

Section 381 of the Election Law does not provide for the issue of a writ of mandamus on the relation of a party who is simply interested in the result of any action taken at an election, but only upon the application of a candidate. Matter of Tamney v. Atkins (1913), 209 N. Y. 202, revg., 151 App. Div. 309, 136 N. Y. Supp. 865.

If the result of an election has been improperly declared by a town board of canvassers, relator has a remedy by quo warranto proceedings, but not by mandamus under the provisions of section 381 of the Election Law. Matter of Baldwin (1913), 80 Misc. 263, 141 N. Y. Supp. 51.

The words "within twenty days thereafter," as used in section 381 of the Election Law, refer to the application for relief and not to the actual obtaining and issuing of a writ of mandamus within that time. Matter of Tamney v. Atkins (1912), 151 App. Div. 309, 136 N. Y. Supp. 865, revd. on other grounds (1913), 209 N. Y. 202.

An order for the examination of voting machines cannot be made under section 374 of the Election Law providing for an examination of ballot boxes. Matter of Thomas (1915), 216 N. Y. 426, revg., 171 App. Div. 977, 160 N. Y. Supp. 977, which affirms 92 Misc. 483, 156 N. Y. Supp. 43.

If, upon an inspection of the ballot boxes under an order granted pursuant to section 374 of the Election Law, it appears that ballots marked "protested," "wholly void" or "wholly blank" have, by inadvertence or otherwise, been deposited in the ballot box instead of being placed in a separate package as required by statute, the court may determine that such ballots were improperly canvassed by the board of inspectors and order the error corrected. People ex rel. Cantor v. County Board of Canvassers (1914), 165 App. Div. 142, 150 N. Y. Supp. 480.

The statute providing for a recanvass of ballots is not susceptible of a construction which will justify an order of the court directing election officers to open a box of voted ballots months after the close of an election, examine the ballots contained therein, and without any marks of identification appearing on said ballots, aided only by a recollection of the situation as it existed on the night of elec

tion day, endeavor to select the identical ballots declared void at the time of the canvass. People ex rel. Brown v. Freisch (1915), 215 N. Y. 356, revg. (1915), 168 App. Div. 370, 153 N. Y. Supp. 277.

Although Congress is the final judge of the qualifications of its own members, until a certificate of election has been transmitted and acted upon, the courts of this State are open to a candidate who complains that the certificate is about to issue in violation of the law. People ex rel. Brown v. Supervisors of Suffolk (1916), 216 N. Y. 732.

A writ of mandamus directing the inspectors of election of a town meeting where local option questions under the Liquor Tax Law were voted upon to count certain ballots which were by them returned as void is a proceeding that may not be entertained by virtue of any inherent powers of the court, but must find authorization and support in the express provisions of some statute or statutes, and is not authorized under section 381 of the Election Law. Matter of Tamney v. Atkins (1913), 209 N. Y. 202.

Where no reason for an earlier decision is shown, a candidate for public office is not entitled to an examination of ballots upon which his name lawfully appears, until the official canvass of the vote has been completed and the Secretary of State has issued his certificate of election. Matter of Whitman (1918), 105 Misc. 74.

ARTICLE VI.

MANDAMUS TO COUNTY OR STATE BOARD.

(Fiero, Spec. Pro., 3rd Ed., pp. 1154-1157.)

A county board of canvassers performs ministerial functions, and cannot be required to include in its statement of canvass facts not prescribed by statute. People ex rel. Gerling v. Board of Canvassers of Monroe County (1917), 163 N. Y. Supp. 987.

The court should not attempt, by mandamus, to direct a board. of elections in arranging the order of the names of candidates upon the ballot, especially when the board follows the rule of action laid down by the Legislature, unless its action is so unjust, arbitrary and discriminatory as to shock the conscience. Walsh v. Boyle (1917), 166 N. Y. Supp. 681.

Inspectors of election cannot be compelled by mandamus to

recanvass the vote and pass upon the validity of ballots which they had before counted as valid. People ex rel. Cantor v. Forman (1915), 154 N. Y. Supp. 689.

pro

Where a soldier ballot marked "Dr. Brush " had not been tested, and the inspectors of election had credited the vote to Edward F. Brush because such intention of the voter was clearly apparent, a writ of mandamus will not lie to compel the inspectors of election to correct their return. People ex rel. Fiske v. Anderson (1918), 181 App. Div. 705, 168 N. Y. Supp. 839. But where a ballot was marked with the word "Fiske" and the inspectors failed to find the voter's intent to be for the relator Edwin W. Fiske and there was no protest in regard to the ballot, the court, on application for a writ of mandamus to correct the return, has no authority to count said vote for the relator. People ex rel. Fiske v. Schum (1918), 181 App. Div. 717, 168 N. Y. Supp. 967. Where local inspectors, not provided with tally sheets as required by section 334 of the Election Law, after they had canvassed soldiers' votes, returned the result, a candidate for mayor, upon affidavit that he had been informed by an inspector and watcher that the true results of the count had been transposed by the inspectors, is not entitled to a writ of mandamus to correct the return, as the court has no power in such a proceeding to open the ballot box and direct a recanvass of the votes. People ex rel. Fiske v. Bantz (1918), 181 App. Div. 702, 168 N. Y. Supp. 965.

Mandamus is the proper remedy for the correction of an election return falsely stating the vote registered by a voting machine, although the election law does not so provide. Such a correction does not require a recount of the votes, and the writ in no sense compels a judicial act. Matter of Smith v. Wenzel (1915), 171 App. Div. 123, 157 N. Y. Supp. 85, affd., 216 N. Y. 421.

Mandamus does not lie to compel the board of elections of the city of New York to enroll a voter in the Republican party where through his own mistake he unintentionally placed his mark in the Democratic circle of the enrolment blank. Matter of Jackson v. Britt (1911), 147 App. Div. 87, 131 N. Y. Supp. 877.

A writ of mandamus directing the inspectors of election of a town meeting where local option questions under the Liquor Tax Law were voted upon to count certain ballots which were by them returned as void, is a proceeding that may not be entertained by

virtue of any inherent powers of the court, but must find authorization and support in the express provisions of some statute or statutes. Tamney v. Atkins (1913), 209 N. Y. 202, revg., 151 App. Div. 309, 136 N. Y. Supp. 865.

If the result of a town election held at a different time than the general election has been improperly declared by the town board of canvassers there is a remedy by quo warranto, but not by mandamus under section 381 of the Election Law. Matter of Baldwin (1913), 80 Misc. 263, 141 N. Y. Supp. 51.

ARTICLE VII.

CORRUPT PRACTICES.

(Fiero, Spec. Pro., 3rd Ed., pp. 1157-1158.)

political

Under section 540 and 546 of the Election Law, a committee" exists wherever three or more persons co-operate to bring about the election or defeat of a candidate or a proposition at an election, and if they make any expenditure of money in so doing they must report their receipts and disbursements. Thus, as the Home Rule Tax Association of the State of New York circulated literature seeking to defeat a constitutional amendment at the polls, and sought to induce electors to vote against the proposition, it constituted a "political committee" and must file a report of its receipts and expenditures in its political campaign. Matter of Woodbury (1916), 174 App. Div. 569, 160 N. Y. Supp. 902.

ELECTION OF OFFICERS OF CORPORATIONS, HOW REVIEWED. See CORPORATION, ELECTION OF OFFICERS OF, HOW REVIEWED.

EMINENT DOMAIN, EXERCISE OF.

See CONDEMNATION OF REAL PROPERTY.

ERRONEOUS ASSESSMENT, HOW RECEIVED AND CORRECTED. See TAX LAW, CERTIORARI TO REVIEW ASSESSMENT.

EXPENDITURES OF TOWNS AND VILLAGES, INVESTIGATIONS OF.

FEDERAL BANKRUPTCY LAW.

See DEBTOR AND CREDITOR LAW.

FORECLOSURE BY ADVERTISEMENT.

(Fiero, Spec. Pro., 3rd Ed., pp. 1184-1214.)

Art.

I. When statutory remedy may be enforced.

II. Notice of sale; contents, filing and service.

III. Sale; its effect and record thereof.

V. Surplus money and proceedings with regard thereto.

ARTICLE I.

WHEN STATUTORY REMEDY MAY BE ENFORCED.

(Fiero, Spec. Pro., 3rd Ed., pp. 1185-1188.)

CODE CIV. PRO., § 2387. When mortgage may be foreclosed.

Code Civ. Pro., § 2387. When mortgage may be foreclosed.

A mortgage upon real property, situated within the state containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon default being made in a condition of the mortgage, may be foreclosed, in the manner prescribed in this title, where the following requisites concur: 1. Default has been made in a condition of the mortgage, whereby the power to sell has become operative.

2. An action has not been brought to recover the debt secured by the mortgage, or any part thereof; or, if such an action has been brought, it has been discontinued, or final judgment has been rendered therein against the plaintiff, or an execution, issued upon a judgment rendered therein in favor of the plaintiff has been returned wholly or partly unsatisfied.

3. The mortgage has been recorded in the proper book for recording mortgages, in the county wherein the property is situated.

4. The first notice required by subdivision one of the next section is published within the time in which an action could be maintained to foreclose such mortgage.

Amended by L. 1913, ch. 486.

ARTICLE II.

NOTICE OF SALE; CONTENTS, FILING AND SERVICE.

(Fiero, Spec. Pro., 3rd Ed., pp. 1188-1194.)

SUBD. 2. Notice of sale, publication, filing and service.

CODE CIV. PRO., § 2396. Affidavit of sale, and of posting, serving, et cetera, notice.

Subd. 2. Notice of Sale, Publication, Filing, and Service.

(Fiero, Spec. Pro., 3rd Ed., pp. 1190-1194.)

Code Civ. Pro., § 2396. Affidavit of sale, and of posting, serving, et cetera, notice.

An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; the