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Their candidates are usually different in at least some respects, and, it being well understood what candidates are nominated by the respective parties, the secretary of state can easily satisfy himself

, from the returns, how many votes were cast for state officers for each party. It happens, however, that in the recent election the Democratic party and this organization in question nominated precisely the same state ticket, and therefore the returns filed in the secretary of state's office do not show how many votes were cast by the Democratic party and how many by this organization. They only show the total number of votes cast for Bird S. Coler for governor and for the rest of the ticket. No separation is made by parties. This is the reason this organization desires the returns changed, so that they will show how many of the votes for Bird S. Coler for governor were cast by this organization.

We do not think the court has power to direct the change in the returns asked for. Section 84 of the election law provides that the officers charged with the duty of furnishing official ballots shall deliver to each board of inspectors of election two tally sheet blanks and three election return sheet blanks. The section prescribes the particular form of such blanks, and, in order that no mistake may be made, a sample of each blank is set out in the section. Upon the tally sheet blank a separate column is provided for each ticket printed on the official ballot, and in this column is to be set down (1) the name of the ticket; (2) the number of votes cast and counted for each candidate on straight tickets; (3) the number of votes cast and counted for each candidate on split tickets; (4) the total number of votes cast and counted for each candidate. This tally sheet therefore contains the information desired by this organization. The election return sheet_blank, however, provides for no separation of the vote by tickets. It provides for a statement merely of the whole number of votes cast for each office, and the whole number cast for each candidate for such office. Section 110 provides that in making the canvass when the votes are counted the proper entries shall first be made on the tally sheets. Section in provides for the making of the returns from the tally sheets in the form prescribed therefor by section 84 of the act. So that these returns will only show the total number of votes cast for each office, and the number for each candidate for such office. They will not show how many are cast for each ticket upon the official ballot. There is no opportunity afforded here for any liberal construction of the statute as to what is to be stated in these returns. The language of the statute is made definite and certain by the insertion in the section of a sample form, and the returns are to be made in the form prescribed. Nothing else can be inserted in the returns without a deviation from and a disregard of the plain provision of the statute. Section 113 provides for an original and two copies of the returns, all of which shall be certified by the inspectors, and the original returns with one of the tally sheets shall be filed with the county clerk, one copy of the returns with the other tally sheet shall be filed with the town or city clerk, and the other copy of the returns shall be delivered to the supervisor. The tally sheets do not seem to be made a part of the returns, nor and 114 New York State Reporter are they required to be certified. They are to be filed with the return in the offices of the city or town and county clerks.

In Re Stewart, 155 N. Y. 550, 50 N. E. 51, it was held that these tally sheets were a contemporaneous official record of the actual count of the votes, which should control in case of any discrepancy between it and the clerical statement made from it by the inspectors after the completion of the canvass, and that it should control in the canvass if there is a discrepancy between it and the returns as to the results of the canvass.

Section 130 provides that the county clerk or his deputy shall be secretary of the board of county canvassers, and section 131 provides that their canvass shall be made from the returns of the inspectors, to be produced from the county clerk's office. There is no provision that the tally sheets shall be so produced before the board or that they shall be used in making the canvass. They can only be used in making corrections in the returns when the correctness of the same is attacked. No form is prescribed by statute for the statement of the canvass to be made by the board of county canvassers, but, it being based alone upon the returns by the inspectors, it cannot well contain any matters not derived from such returns, and the board has no power or authority to go outside the returns, and examine the tally sheets, or make any statement, based upon such tally sheets, not found in the returns.

Section 135 provides the statement made by the board of county canvassers shall be filed in the county clerk's office; section 137 provides that the county clerk shall transmit it to the secretary of state; and section 140 provides that the state board of canvassers, from the statements of the various boards of county canvassers, shall make their canvass and file their statement thereof with the secretary of state; and section 141 provides that from such statement the secretary of state shall issue his certificates of election. It appears, therefore, that the board of Erie county canvassers have performed their full duty under the statute; that they had no right to make their statement or returns as desired by the appellant, and could not, therefore, be required by the court to so correct the same.

The difficulty is that the appellant, while attempting to form a party organization separate and distinct from the regular Democracy, nominated precisely the same state ticket that had already been nominated by that party. It finds itself, therefore, in a situation not contemplated by the law, and not expected to arise. The courts cannot well relieve it from its dilemma. It may be suggested, however, that it is in no different position from that of the regular organization. There will be nothing more in the secretary of state's office next year to show what proportion of the vote for Mr. Coler in the recent election was cast by the regular Democracy than there will to show the proportion cast by the appellant's organization. Either party can very likely obtain the evidence desired by examining and tabulating the vote for its party as contained in the tally sheets on file in the various county clerks' offices of the state.

Our conclusion is that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

COWEN V. VOYER et al. (Supreme Court, Appellate Division, Third Department. January 14, 1903.) 1. CONVERSION-COMPLAINT-INSUFFICIENCY.

A complaint in an action to recover money alleged to have been wrongfully appropriated by defendants to their own use averred that defendants, stockbrokers, promised to purchase for plaintiff 10 shares of stock, and that the plaintiff paid to them $30 on account, which defendants had wrongfully converted, but did not aver whether defendants were to advance the balance of the price, or to purchase in the name of plaintiff and pledge his credit therefor. The terms of the contract under which the purchase was to be made were not set out, and there was no allegation that plaintiff bad demanded the money. Held, that as there was nothing to show that defendants were not entitled to mingle the $30 paid on account with their own funds, or that they were in any way in default, the complaint was demurrable. Appeal from special term, Albany county.

Action by Joseph W. Cowen against Alfred J. Voyer and another. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Argued before PARKER, P. J., and SMITH, KELLOGG, and CHASE, JJ.

Peter A. Stephens and Daniel J. Dugan, for appellant.
Eugene D. Flanigan, for respondents.

PARKER, P. J. If it were clear that the defendants took the plaintiff's money for a certain purpose, agreed to apply it to that purpose, but instead of doing so appropriated it to their own use, then a cause of action would undoubtedly lie to recover it back. But are there sufficient facts averred in this complaint to show that such a condition exists? Take the first item as illustrating them all. It is charged that the defendants, doing business as stockbrokers, promised to purchase for the plaintiff to shares of Brooklyn Rapid Transit stock, and that the plaintiff paid to them on June 11, 1901, $30 on account of the purchase price thereof. What are we to understand were the legal relations of the parties by reason of the facts there stated ?

It cannot be supposed that they agreed to purchase the whole 10 shares for the $30, for the statement is that it was "on account” of the purchase price. Were the defendants to advance the balance of the purchase price for the plaintiff, or were they to purchase in the name of the plaintiff and pledge his credit therefor? Neither of those methods is averred, and we have no right to assume that either was agreed to. Were the defendants to make the purchase as soon as the plaintiff had paid or advanced to them the whole purchase price, or what part was to be advanced before the purchase was made ? We do not know, because no averment is made upon that subject. We do know that the defendants rightfully received the $30 from the plaintiff, but we do not know that the contract under which they so received it has ever been violated by them. If they were to purchase the stock with it as soon as the plaintiff paid them enough more to make up its market price, then the defendants are not in and 114 New York State Reporter default, and may hold the $30 until the remainder is paid them. If the conduct of the defendants has been such that the plaintiff may repudiate the contract under which the $30 was paid to them, then probably he would have an action to recover it back. But in this complaint the facts averred do not show such conduct on the defendants' part. We can say that they are in default with reference to the $30 only by assuming that they agreed to at once advance the money to make the purchase,-a fact which, it seems to me, we have no right to assume. The trouble is that the terms of the contract under which the defendants received the $30 are nowhere stated, and hence there is nothing to show whether the defendants were or were not in default in making the purchase or using the money.

There is nothing in the averments of the complaint to show that the defendants were obligated to preserve this particular $30 for the purchase of the stock. It was "paid" to the defendants "on account, and when received by them they might well put it to their own credit in bank and mingle it with their own funds. Hence the averment that the defendants had appropriated the $30 to their own use is of no particular force. Nor does the averment that the defendants had refused to account for the $30 add anything to the strength of the plaintiff's claim. There is nothing averred showing that the defendants were, at that time, obligated to either purchase the stock or account for the money. It is to be noticed that there was no demand: for a repayment of the $30, no repudiation of the contract under which it was paid to the defendants, and, as said above, nothing to show the defendants in default under that contract. It was very easy to state the full contract agreement between the parties, and just what the defendants' obligations under it were, just precisely wherein they had made default, and just why the plaintiff had the right to recover the amount of the $30 he had paid to them. For some inexplicable reason the pleader seems to have preferred a more condensed way, and has thus fallen just a little short of stating a cause of action. The demurrer was well taken, and the judgment thereon must be affirmed.

Interlocutory judgment affirmed, with costs, with usual leave to amend on payment of costs. All concur.

(79 App. Div. 470.)

NELLIS et al. v. LAUGHLIN. (Supreme Court, Appellate Division, Fourth Department. January 6, 1903.) 1 NEGLIGENCE-CUTTING ICE-FAILING TO GUARD HOLE-CAUSE OF DEATI

EVIDENCE-SUFFICIENCY.

Evidence examined, and held insufficient to sup ort a finding that the negligence of defendant in leaving unguarded a place on a river where he had been cutting ice was the cause of the death of plaintiff's intestate. Appeal from trial term, Jefferson county.

Action by John Nellis and another, as administrators, etc., against Henry A. Laughlin. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before ADAMS, P. J., and SPRING, WILLIAMS, HISCOCK, and NASH, JJ.

Purcell, Walker & Burns, for appellant.
Jerome B. Cooper and E. C. Emerson, for respondents.

WILLIAMS, J. The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event. The action was to recover damages for the death of the plaintiffs' intestate, alleged to have been caused by the negligence of the defendant. The deceased was drowned in the St. Lawrence river, near Alexandria Bay, Jefferson county, N. Y., January 27, 1899, by breaking through the ice at a place where defendant had been taking ice to store in his icehouse for summer use. The negligence alleged was a failure to properly guard the place from which the ice had been removed. No one saw the accident occur. Defendant had a summer home on Wells Island, which he had owned for 15 years. Just north of him was the summer home of Browning, south of him the summer home of R. H. Pullman, and in the vicinity were other summer homes, on different islands. A week prior to the accident in question, the icehouses of defendant and Browning had been filled from the place in question; several days having been occupied in doing the work. The place where the ice was taken out was just opposite the Browning dock, and 5 or lo rods from the shore. After the ice was removed, no guards were placed around the hole. At a point about 30 feet from the Pullman dock, toward defendant's premises, there was a water hole made for the purpose of getting water for the use of people occupying the Browning farmhouse during the winter. The deceased had worked in the vicinity for some years. He was about 20 years of age, and for several months prior to the accident had been employed about the Browning premises, doing light work and chores, and one of his duties was to take water from the hole near the Pullman dock, and carry to the house for use therein. This he did several times a day after the river froze over, and down to the time of the accident. The place where the ice was taken out was in full view, and the removing of the ice and storing it in the icehouses having occupied several days, when the deceased was in the vicinity, about the Browning premises and upon the river carrying water from the hole in the ice near the Pullman dock, the inference is irresistible that he must have known of the locality of the hole from which the ice was removed.

For two months prior to the accident, Mr. Polhernus, who lived in the Browning farmhouse, had been suffering from blood poisoning, and had been attended by a doctor living at Alexandria Bay, who visited him daily. When the doctor first commenced making his visits, he told deceased that every morning, when he called, he would want a pail of cold water for use in his treatment of the patient. On the morning of the accident, at 10 or 11 o'clock, deceased received instructions in the Browning house to get some water. He went to the barn, and there met the doctor, who had just arrived, talked with him, and, taking a galvanized iron pail, said he would go for some water. He passed out of and around the barn toward

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