Supreme Court, December, 1917. [Vol. 102. defendant's passenger car, seated, reading a newspaper, as any other passenger. There was no evidence that defendant permitted its employees when off duty to ride in its passenger cars when wearing their uniforms, or that when so riding such employees were riding at their own risk; no evidence was offered that employees so riding released defendant from liability by reason of defendant's negligence, and no evidence was offered that an employee when so riding was to be treated any differently than any other citizen. "The law is well settled that if the master's negligence is a matter extraneous to his specific employment, or if the injury be received at a time when the servant is not engaged in his duties, then the servant occupies the position or status of a stranger. (Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274.) He was at the time of the accident a stranger to the defendant." Best v. N. Y. C. & H. R. R. R. Co., 117 App. Div. 741. If a servant of a railroad corporation divests himself of his character as a servant or fellow-servant, and becomes a paying passenger on the cars of the railroad, he will doubtless acquire and possess all the rights of a passenger or of any third person unconnected with the master. Ross v. N. Y. C. & H. R. R. R. Co., 5 Hun, 497; affd., 74 N. Y. 617. It was said in McGucken v. W. N. Y. & P. R. R. Co., 77 Hun, 69, of a railroad employee traveling on a pass, to perform certain work," He was a passenger · though a free passenger-and his place was in the passenger car." The plaintiff is not entitled to any relief under the Workmen's Compensation Act. The amendment of 1916, chapter 622, while adding a new class of employees who theretofore had been excluded from its benefits, does not provide that a person not in the service of the employer is an employee. The statute still Misc.] Supreme Court, December, 1917. requires the applicant for relief to be in the service of the employer when injured. There has not been cited any authority in this state squarely holding that an employee off duty riding as a passenger, solely in pursuit of his own pleasure or business, must as a matter of law be held to be an employee while so riding. In 6 Cyc. page 544, it is said, "But as it is customary to give free transportation to employees as a part of the consideration for their services, an employee so riding, not for the purpose of rendering any service but for his own pleasure or advantage, is a passenger." Citing authorities in many states. The only authority in New York that even superficially seems to hold otherwise is McLaughlin v. Interurban St. R. Co., 101 App. Div. 134, in which case the injured plaintiff specifically alleged that he was an employee seeking benefits under the Employers' Liability Act. In the case at bar every fact touching the plaintiff's status at the time of his injury being conceded, it was established as a matter of law that the plaintiff was a passenger at the time of his injury. The conclusion is reached that defendant's motion must be denied. Motion denied. Supreme Court, December, 1917. [Vol. 102. THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWIN W. FISKE, Relator, v. THE INSPECTORS OF ELECTION OF CERTAIN DISTRICTS OF THE CITY OF MOUNT Vernon, Respondents. THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD F. BRUSH, Relator, v. THE INSPECTORS OF ELECTION OF CERTAIN DISTRICTS OF THE CITY OF MOUNT Vernon, Respondents. (Supreme Court, Westchester Special Term, December, 1917.) Election Law, as amended by Laws of 1917, chapter 815 — mandamus writ of in proceedings relating to soldiers' votes-validity of certain ballots. Upon an application for a writ of mandamus in a proceeding relating solely to soldiers' votes, questions with reference to the procedure under the Election Law as amended by chapter 815 of the Laws of 1917 and as to the validity of certain ballots considered, and held, that no ballot should be rejected as void where the intent of the voter was clearly apparent. APPLICATION for a writ of mandamus. George H. Taylor, Jr., Jeremiah D. Toomey and J. Henry Esser, for Edward F. Brush. Frank A. Bennett and Arthur M. Johnson, for Edwin W. Fiske. TOMPKINS, J. My conclusions in these matters, which relate solely to soldiers' votes under the Election Law, have been hastily reached, and necessarily so because they were all submitted to me late on Monday afternoon, and it seems necessary that some of the questions be decided in time for the reconvening of the board of Misc.] Supreme Court, December, 1917. county canvassers on Wednesday, with Christmas Day intervening. The Diefendorf ballot was disposed of on the argument, and the court now adheres to that decision, which was that the inspectors of election of district No. 5 should deliver the sealed envelope containing that ballot to the inspectors of district No. 4, in which concededly the soldier resided and had a right to vote, and that the inspectors of district No. 4 should reconvene and canvass said vote, and make a supplemental return thereof. This seems to me the proper disposition of this ballot. By mistake it went to district No. 5, and when it was found by the inspectors in that district the envelope containing the ballot was not opened, and the ballot was not canvassed because it was known that the soldier was not a voter in that district; the envelope was preserved intact, and in that form the court directed that it be delivered to the inspectors of district No. 4 to be opened, canvassed, tallied and returned. A ballot in district No. 4 of the fourth ward was not counted by the inspectors in that district because the right of the voter, Louis Caridieo, was challenged by an affidavit filed with said inspectors, which alleged upon information and belief that the soldier was not of lawful age. It was the duty of the board of inspectors to judicially determine whether this soldier was a qualified voter, and such a determination was never made. The inspectors simply received the affidavit which was in the nature of a challenge, and did not pass upon the voter's qualifications, and my opinion, as expressed from the bench yesterday, to the effect that it was the duty of the inspectors to rule upon the challenge and then receive or reject the vote, and if received to count it for the candidates voted thereon, and if it were determined that the soldier had not a right to vote then to Supreme Court, December, 1917. [Vol. 102. destroy the ballot, is confirmed by my subsequent consideration of the case. An order will therefore be made directing the inspectors of this district to reconvene and determine whether Caridieo was a qualified voter, and if he was to count the ballot and make a supplemental return thereof. The return of the inspectors from district No. 3 of the third ward shows eight votes for Brush and five for Fiske. The claim is now made on behalf of Fiske, and is supported by the affidavits of the two inspectors, that an error was made in returning these votes, and that as a matter of fact Fiske had eight votes and Brush five; and it is sought in this mandamus proceeding to compel a correction of the returns. The General Election Law gives the county canvassers a right to summon the district inspectors of election for the correction of clerical errors. This, however, refers only to errors that may appear upon the face of the returns or tally sheet, or both; and undoubtedly the board of county canvassers can be compelled by mandamus to summon district inspectors for the purpose of making such corrections, but in this instance no error or omission appears upon the face of the returns or the tally sheet. The claim is made in the first instance by the district inspectors, and they say that they made a mistake, but they are not permitted to impeach their own return, nor has the court power in this proceeding to direct the opening of the ballot box, and a recount of the ballots. The relator's only remedy is by an action in quo warranto, and to lay the basis for such an action he may, upon proper application to the court, obtain an order for the opening of the ballot box and an inspection and examination of its contents. It seems to me that there ought to be a simpler, quicker and less expensive method of correcting an error of this character than a quo warranto action, |