Lewis v. Brush
| Decision Date | 30 April 1895 |
| Parties | PEOPLE ex rel. LEWIS v. BRUSH et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Application by the people, on the relation of Edson Lewis, for mandamus to Edward F. Brush and others, claiming to be the mayor and council of the city of Mt. Vernon, to compel the recognition of relator as mayor. The application was denied, and on appeal the order was affirmed at the general term (31 N. Y. Supp. 586), and relator appeals. Affirmed.
Roger M. Sherman, for appellant.
Joseph S. Wood, for respondents.
The relator asked for a peremptory writ of mandamus, based upon his own affidavit, stating that he received a plurality of the votes lawfully cast for the office of mayor, at the election held in the city of Mt. Vernon, May 15, 1894; and that on the following day, at a regular meeting of the common council, the votes were duly canvassed, and he declared elected; and, upon the certificate of the city clerk, that a resolution was adopted to that effect, and upon the affidavit of Edward F. Brush, one of the respondents and the then acting mayor, to the effect that he conceded that the relator was elected to the office of mayor, and that there was a valid and lawful canvass of the certificates of his election. In opposition to the motion, an affidavit of Edwin W. Fiske, one of the respondents and an alderman of the city, was read, in which he denies that the relator received a plurality of all of the votes cast for the office of mayor, or that it so appeared from the lawful certificates of the inspectors of election on file in the office of the clerk of the city, or that there was a regular meeting of the common council of the city held on the day following the election, at which there was a canvass of the votes or of the certificates of election so far as the office of mayor was concerned. The special term denied the motion. In the opinion delivered by the court on the denial thereof, it appears that the common council of the city was composed of ten aldermen, and that but five were present at the time the votes were canvassed, and the conclusion was reached that the canvass was illegal and void for the reason that no quorum was present.
We have carefully examined the record, and have failed to find any statement, either in the moving or opposing affidavits, showing the number of aldermen that were present taking part in the canvass, and it is well settled...
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