People v. McClellan

• Decision Date: 06 March 1908
• Citation: 191 N.Y. 341,84 N.E. 68
• Parties: PEOPLE v. McCLELLAN et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 341

84 N.E. 68

PEOPLE

v.McCLELLAN et al.

Court of Appeals of New York.

March 6, 1908.

Appeal from Supreme Court, Appellate Division, first Department.

Quo warranto by the people of the state of New York against George B. McClellan and William R. Hearst. From an order of the Appellate Division (108 N. Y. Supp. 765), reversing an order of the Special Term (56 Misc. Rep. 123,106 N. Y. Supp. 200), denying defendant McClellan's motion for a full bill of particulars, plaintiff appeals. Reversed.

See, also, 109 N. Y. Supp. 76.

Gray, Vann, and Werner, JJ., dissenting.

Clarence J. Shearn for appellant.

Eugene Lamb Richards, Jr., for respondent.

HAIGHT, J.

This action is in the nature of a quo warranto brought by the Attorney General to oust the defendant George B. McClellan from the office of mayor of the city of New York, and to seat William R. Hearst as such mayor, upon the ground that at the election of mayor in that city in the fall of 1905 the defendant Hearst was elected as such mayor, instead of the defendant McClellan.

After issue had been joined in the action, an order was obtained upon the application of the defendant McClellan, requiring the Attorney General to furnish him with a bill of particulars of the allegations of subdivisions 4, 5, 6, 7, and 8 of the complaint, in substance, particularly specifying each election district in which ballots lawfully marked and cast for Hearst were counted as having been cast for McClellan, stating particularly the number of such ballots in each election district, and whether straight or split ballots; and also specifying particularly each election district in which marked, void, and illegal ballots were counted for McClellan, stating the number in each district; also specifying each district in which men were permitted to vote for McClellan who had not theretofore been registered, the hour of their voting, their names and address, and those who voted more than once at such election; also each election district in which inspectors failed and omitted to count ballots that had been lawfully cast for Hearst and had failed and omitted to enter upon and embody in the returns of the votes cast for such office, such votes, specifying the number and whether straight or split ballots; and also particularly specifying the election districts in which votes were by the inspectors of election entered upon and embodied in the returns of the votes cast for McClellan which had not, in fact, been cast at all, specifying particularly the number, whether straight or split, etc. Thereupon, and upon December 19, 1907, the Attorney General caused to be served upon the defendant McClellan a verified bill of particulars, specifying a large number of election districts, and stating the number of votes in each that he claimed had been improperly counted for McClellan, and then stated, in substance, that he was unable to give any other or further particulars of the allegations of the complaint, for the reason that the full and complete information concerning the allegations could only be had from an inspection of the ballots contained in the several ballot boxes used at such election. Thereupon the defendant McClellan moved the court for an order directing the Attorney General to furnish a further bill of particulars of the allegations contained in subdivisions 4, 5, 7, and 8 of the complaint, complying with the prior order for a bill of particulars by specifying the number of votes miscounted in each election district of Kings county, and particularly and separately what votes were miscounted by acts alleged in subdivision 4, and what votes were miscounted by acts alleged in subdivision 7, and what votes were miscounted by acts alleged in subdivision 8, specifying whether upon split or straight ballots, and that he be required to give further particulars in regard to the allegations contained in subdivision 5 of the complaint, specifying whether the votes alleged to have been miscounted were upon split or straight ballots, and in default of such information that he be precluded from giving any evidence of any misconduct or miscount of votes in any election district, and for such other and further relief in the premises as may be just.

This motion was opposed by the Attorney General, who made an affidavit in substance stating that the ballot boxes were in the custody of the board of elections of the city of New York, kept under lock and key, and neither he nor any other person had been permitted to open the same or make an examination of their contents, and that consequently he could not furnish the information called for. Thereupon the Special Term denied the motion, but on review by the AppellateDivision the order of the Special Term was reversed, and the motion granted to the extent of precluding the plaintiff from giving any evidence of the allegations contained in subdivision 6 of the complaint or of any fraud, error, omission, or mistake as charged in subdivisions 4, 5, 7, and 8 of the complaint, except with regard to the election districts specified in the schedule of the bill of particulars served by the Attorney General. Permission was then granted to appeal to this court, and the following questions were certified:

‘(1) Whether, upon the trial of this action, the plaintiff should be precluded from giving any evidence of fraud, error, omission, or mistake as charged in the paragraphs or subdivisions 4, 5, 7 and 8 of the amended complaint and supplemental complaint, except with regard to the election districts specified in the bill of particulars.

‘(2) Whether upon the trial of this action to test the title of the defendant McClellan to an elective office, if it shall appear that the said defendant had been declared elected by the board of canvassers and had received a certificate of election regular in form, the burden of impeaching the certificate of election, by showing fraud, error, or omission in the counting, returning, or canvass of the votes will rest upon the plaintiff.

‘(3) Whether in such an action any ballot box may be opened and its contents recounted without preliminary evidence tending to show some misconduct, error, omission, or fraud in the counting or canvassing of the vote or in the returns.’

Upon the argument of this appeal it was conceded by the appellant's counsel that the second question should be answered in the affirmative. Our review therefore is limited to a consideration of the first and third questions certified.

It has been suggested that the ordering of a bill of particulars rests in the sound discretion of the Special Term and Appellate Division of the Supreme Court, that such discretion is not reviewable by this court, and that this court ought not to determine in advance the rulings that the trial court should make with reference to the admission or rejection of evidence. The office of a bill of particulars is to apprise a party of the particulars of the claim that he will be called upon to meet upon the trial, so that he may be able to prepare his defense and procure the attendance of such witnesses as he may be able to produce upon the subject. It is not usual, however, to require a party to give the particulars of the evidence of which he proposes to avail himself upon a trial. It is doubtless true that the giving or the withholding of a bill of particulars ordinarily rests in the discretion of the Supreme Court, and that discretion cannot be reviewed in this court; but there is a limit to such discretion. It cannot require a plaintiff to furnish the particulars of evidence which is not within his power to furnish, or preclude him from giving lawful and proper evidence upon the trial, by reason of his inability to specify in advance what such evidence will disclose. A party may have an intimation in advance as to how a witness will testify upon the trial, but he cannot be certain until after the witness has been placed under oath and his testimony taken.

In this case the Attorney General, as we have seen, has sworn that the ballots cast at the election in question were contained in boxes in the custody of the board of elections, kept under lock and key, and that no person had been permitted to open and examine their contents, and therefore he was unable to give information as to the facts that would be disclosed upon such an examination. The fact that the custody of these boxes, after the close of election, is given to the board of elections, and that it is made the duty of that board to preserve and keep the boxes and their contents inviolate, is a provision of the statute, and therefore the statement of the Attorney General with reference thereto is not open to question. By referring to the order for the amended bill of particulars requiring compliance with the original order, it is quite apparent that most, if not all, of the information which he is required to furnish, in addition to that furnished by him in the bill of particulars, depends upon the information which is contained in the boxes, and can only be furnished upon an examination of their contents. We therefore are of the opinion that the order precluding the Attorney General from giving any evidence of the miscount of votes in the election districts in which he was not able to specify the particulars required by the bill of particulars, without an opportunity to inspect the ballots contained in the boxes, presents a question of law which this court has the power to determine. It is not a review in advance of rulings that may be made by the trial court in the admission and rejection of evidence, but it is the review of an order of the Appellate Division by which the trial court is required to exclude and prohibit the Attorney General from giving in evidence the contents of the ballot boxes referred to in the order. The order of the Appellate Division is based on the proposition that, before the admission of the contents of the boxes in evidence, proof...