has been lost. It is recited, however, in a deed given by the Carmans to one Christian Shultz; and this was supplemented by the testimony of one Seman, whose grandfather was a judge of the court of common pleas, who testified that on one occasion he, with his father, were examining the papers of his grandfather, which had been preserved in a trunk, and that there he found a deed from Charity Treadwell to Carman and his wife, which covered this property. The evidence may be slight, but we are inclined to the view that it is sufficient to sustain the finding. The other conveyances reaching the plaintiff have not been questioned, except that they are claimed to be void under the champerty act. The defendant's railroad had been constructed only 19 years, and it therefore was not in a position to avail itself of the statute of limitations, or the defense of adverse possession for 20 years. The statute provides that "every grant of lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor." 1 Rev. St. p. 739, § 147. The deed to the plaintiff bears date October 15, 1867. The defendant's road was constructed in 1864. It must therefore be conceded that at the time the plaintiff took his deed the defendant was in possession, but did he hold it adversely? In order to constitute such adverse possession as will avoid a deed, there must be a claim of some title or interest under some written instrument purporting to convey the lands to the claimant, or else some judgment, decree, or executed process of some court. Crary v. Goodman, 22 N. Y. 170; Laverty v. Moore, 33 N. Y. 658; Dawley v. Brown, 79 N. Y. 390; Chalmers v. Wright, 5 Rob. (N. Y.) 713. Had the defendant such an instrument? The paper upon which it relied was executed by one Jacob S. Jones, who claims title through the deed given by John Jackson to his son Obediah of real estate in Great Neck. It provides that, "in consideration of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, and of the benefits and advantages we are to derive from the construction of the South Side Railroad, and in consideration of the building of said road within two years, we do hereby agree with each other, and with the South Side Railroad Company of Long Island, to grant and transfer to the South Side Railroad Company the right of way over a strip of land in width not exceeding sixty-six feet over and through lands respectively owned by us, as laid out on the general line designated on a map of said road as now prepared by Samuel McElroy, engineer, and as the same may be finally and definitely located by the engineer of said company." The defendant has succeeded to the rights of the South Side Railroad Company, but is there any reference in this instrument to the lands in controversy? We fail to discover it. True, Jones has given to the railroad company the right of way 66 feet wide through the lands owned by him, as the road is laid out and designated on a map prepared by the engineer. Further than that it does not go. If, as has been found. the lands of Jones derived through the deed from Obediah Jackson were on Great Neck, and did not include the lands in question upon Little Neck, then this instrument affords no paper title upon which the right of adverse possession can be founded. Were it otherwise, a company owning a railroad could make a conveyance, with a general description as through the grantor's premises, the foundation of a claim for adverse possession of property remote from that included in the conveyance. The question therefore resolves itself into one of fact, and that is, did the deed of 1761 to Obediah Jackson embrace the lands in dispute? If it did not, the defense of champerty must fail. That question, as we have seen, was found in favor of the plaintiff, and, as we have shown, upon ample evidence to sustain it. In an action to recover real property, the person who establishes a legal title to the premises is presumed to have been in possession thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under, and in subordination to, the legal title, unless the premises have been held and possessed adversely to the legal title for 20 years before the commencement of the action. Code Civ. Proc. § 368. Upon the trial a witness was asked by the defendant, "Since your mother's death, who has been in possession of this farm that was cultivated by your grandfather?" To this an objection was interposed, which was sustained. The defendant then offered to prove by this witness that he had been, for more than 20 years prior to the commencement of this action, in possession of the greater portion of the farm cultivated by Obediah Jackson, including the premises described in the complaint; that he was in possession, claiming title to the farm, and to the premises described in the complaint, in fee simple, etc. It was excluded, and an exception was taken. The referee had been careful to admit in evidence all the acts of the parties tending to show possession. He had permitted evidence to be given showing whether the premises were fenced, when and how cultivated, and what was done upon the land from time to time. The question as to whether the witness was in possession was a conclusion of law to be drawn from the facts. The ruling was proper. Miller v. Railroad Co., 71 N. Y. 380, 385. Other exceptions were taken to the admission and rejection of testimony, and to the findings of the referee, but they point to no error requiring a reversal. The judgment should be affirmed, with costs. All Judgment affirmed. concur. PEOPLE ex rel. FEENY v. BOARD OF CAN- Y. An order of the appellate division upon an appeal to it from the determination of the special term upon an application, under section 114 of the election law (Laws 1896, c. 909), for a mandamus to a board of canvassers or boards of inspectors of election, requiring a recount of a vote, is a final order in a special proceeding, and is appealable to the court of appeals; and that court is bound to examine the ballots cast, and determine their validity or invalidity under the law. Martin, Bartlett, and Vann, JJ., dissenting. 2. Ballots which show erasures, cancellations, and obliterations, apparently made by the voter in attempting to correct his own errors, are invalid, under section 105 of the election law. 3. Ballots on which a cross mark has been placed in the voting place before the words "No Nomination," on a ticket, are invalid, under section 105 of the election law. 4. Ballots which contain the names of candidates, written in the blank column, whose names are already printed on the ballot for the office, are invalid, under section 105 of the election law. 5. Ballots which bear cross marks before the names of the opposing candidates for the same office are not thereby rendered invalid as to votes for candidates for other offices, although the vote for the office particularly affected by such voting marks cannot be counted. Parker, C. J.. and O'Brien, J., dissenting. 6. Ballots which bear cross marks before the name of the same candidate for the same office, in two different columns upon the ballot, are not thereby rendered invalid. Parker, C. J., and O'Brien, J., dissenting. 7. Ballots which bear cross marks in the voting circles at the heads of two separate tickets, each of which bears the name of the same candidate for an office, are not invalid, but, under section 110, subd. 2, par. 6, of the election law, should be counted for the candidate_named for such office. Parker, C. J., and O'Brien, J., dissenting. 8. Ballots on which the elector has attempted to vote for more candidates for the same office than were to be elected are not thereby rendered invalid as to votes for candidates for other offices. Parker, C. J., and O'Brien, J., dissenting. 9. A ballot bearing a mark made with some other instrument than a pencil is invalid, and cannot be counted. 10. Ballots which bear cross marks opposite the names of two candidates for the same office, in different columns, but not on the same horizontal lines,-there being two candidates to be elected to such office,-are not invalid, and are to be counted for the candidates whose names are marked. Appeal from supreme court, appellate division, Second department. Application by the people, on the relation of John L. Feeny, against the board of canvassers of Richmond county and George Cromwell. From an order of the appellate division (48 N. Y. Supp. 866) reversing an order of the special term awarding a peremptory mandamus, relator appeals. Modified. Albert Reynaud and George M. Van Hoesen, for appellant. John S. Davenport and William Allaire Shortt, for respondents. GRAY, J. I have reached the conclusion that we cannot escape the onerous task of examining the ballots which are in dispute in this proceeding. It might well have been spared to this court by express enactment in the election law, but without such we would not be warranted in refusing to assume jurisdiction. I am unable to say that questions of law are not presented by this appeal. Entertaining that view, I have addressed myself to the examination of the ballots in dispute, and, classifying them, as nearly as may be, according to the objections made to them, I shall specifically and briefly state my conclusions as to their validity or invalidity as votes for the respective candidates for the office of president of the borough of Richmond: 1. As to the ballots upon which the special term and the appellate division have agreed with respect to their allowance or rejection, I am satisfied with their conclusions. There are 101 of these ballots, as nearly as can be made out from the record. 2. The following ballots, numbered 5, 52, 74, 80, 81, 88, 98, 128, 136, 143, 144, 147, 160, 161, and 173, being 15 in all, were objected to because of erasures, cancellations, or for being defaced. I think, under section 105 of the election law (Laws 1896, c. 909), that these ballots were invalidated, and could not be counted. Twelve of these ballots affect Cromwell, and 3 of them affect Feeny. 3. The following ballots, numbered 64, 93, 165, and 178, being four in all, were objected to as having been marked for identification, from the fact that the cross mark was placed in the voting spaces before the words, on the ticket, "No Nomination." I think that, under section 105 of the election law, these ballots could not lawfully be allowed, inasmuch as they bore upon them a mark other than the cross mark to be used by the elector in voting, in the circles, or in the voting spaces to the left of the names of the candidates. All of these ballots affect Cromwell. 4. The following ballots, numbered 3, 33, and 45, being three in all, contained the names of candidates written with pencil in the blank column, whose names were already printed upon the ballots for the office. Under the provisions of section 105, these ballots were clearly vitiated. All of these ballots affect Feeny. 5. The following ballots, numbered 58, 60, 84, 87, 95, 97, 99, 101, 112, 167, 174, 176, and 185, being 13 in all, show cross marks before the names of opposing candidates for the same office.-not the office in question in these proceedings. I do not think that the effect of the elector's action was to destroy the whole ballot, but that under paragraph 1 of subdivision 2 of section 110 of the election law, the vote for the office particularly affected by these voting marks for opposing candidates could not be counted. I think, therefore, that Cromwell should be allowed 8, and Feeny 5, of these ballots. 6. The following ballots, numbered 27, 34, 59, 65, 66, 72, 100, 102, 105, 113, 134, 157, 158, 159, 179, 183, and 184, being 17 in all, showed cross marks before the name of the same candidate for the same office, in two different columns upon the ballot. I think that we should regard the effect of so voting to be that of surplusage, merely. No just reason exists for regarding such as marked ballots, when, under paragraph 1 of subdivision 2 of section 110, we find, where cross marks are found before the names of opposing candidates for the same office, that the effect prescribed is to invalidate, not the whole ballot, but only the vote for the office particularly affected by the voting marks. Although the statute does not refer to just such a case, the principle is the same; and I am disposed to think that it is open for us to hold that if, in the one case mentioned in paragraph 1 of subdivision 2, the ballot is not to be regarded as marked for identification, it should not be so regarded in the other. The justice to the elector, which should characterize the interpretation of the statute, seems to demand that we should so hold. I think, therefore, that Cromwell should have counted for him 14 of these ballots, and Feeny 3. 7. The following ballots, numbered 14, 24, 77, 85, 103, 133, and 139, being 7 in all, contain cross marks in two or more of the voting circles at the heads of the columns. I think that they should all be counted, under paragraph 6 of subdivision 2 of section 110, which provides that where the cross mark is in more than one circle, and if on either of the tickets there shall be a candidate for an office, for which no other candidate is named on the other ticket, the elector's vote shall be counted for such candidate. The effect would be to give to Cromwell the votes on these seven ballots, inasmuch as his name was on the different tickets that had been marked in the circles. 8. The following ballots, numbered 35, 94, 109, and 170, being 4 in all, were objected to because the elector had attempted to vote for two or three candidates for the same office. Under paragraph 1 of subdivision 2 of section 110, I think that the effect was, not to destroy the ballot, but to require the inspectors to throw it out as a vote for the particular office affected; it being impossible to determine the elector's choice for the office. In that view, Cromwell would receive 3, and Feeny 1, of these votes. Ballot 131 contained a mark made in the circle at the head of the ticket, as if by a sharp instrument, not a pencil, and was thus vitiated. I think that it should not be counted for Feeny. 9. The following ballots, numbered 28, 31, 32, 57, 70, 106, 107, 110, 111, 117, 118, 127, and 137, being 13 in all, contain voting marks opposite the names of two candidates for the same office, in different columns, but not on the same horizontal lines. I do not think that the ballots were vitiated thereby, inasmuch as in every case there were two candidates to be elected to the office; and the elector should be regarded as having exercised his right to select which one of the two candidates on the different tickets he would cast his vote for. Some of these ballots were also objected to because of defects which I think are too trivial to affect them, and which need not be more particularly referred to. Of these ballots, 9 were for Cromwell, and 4 were for Feeny. 10. The following ballots, numbered 18, 75, 78, 104, and 148, being 5 in all, I think were rendered invalid because of marks found upon them, either against the words "No Nomination," or elsewhere upon the ballots. Of these, 4 affect Feeny, and 1 affects Cromwell. As to ballots Nos. 3, 33, 45, 106, 107, and 128, considered above, the appellate division affirmed the determination of the special term. They should therefore be transferred to the first class. While Nos. 126 and 129, included in the first class, were reversed, and should be transferred to the ninth class, and held valid. I think that the judgment of the appellate division should be modified so as to provide for a recount in accordance with the views herein expressed, and as so modified affirmed, without costs to either party. HAIGHT, J. (concurring). It may be that a review by this court of alleged defective ballots cast in a closely-contested election may consume so much time as to seriously cripple the court, and in a measure prevent it from transacting its regular business. But the remedy is with the legislature, and not with us. The situation affords us no excuse for overruling what I consider to be many well-considered cases, and now holding that we have no jurisdiction to hear such cases. I cannot concur in the opinion of Judge MARTIN. I do not understand that the remedy given by the statute, of a review of the ballots by mandamus, is exclusive, for the reason that the right of action by quo warranto still survives. But, if it should be held that the remedy is exclusive, it by no means follows that the determination of the lower court may not be reviewed by appeal. The constitution not only gives this court the power to review the determination of the appellate division, but in certain specified cases makes it the duty of the court to review. It provides that "appeals may be taken as of right to said court from judgments or orders finally determining actions or special proceedings." And to the same effect are the provisions of the Code. If an appeal may be taken to the court as of right, how can the court justify itself in refusing to hear it? The order sought to be reviewed is beyond question a final order in a special proceeding, in which the appeal may be taken as of right; and I believe it to be the duty of the court to en tertain it, and determine the questions involved. The constitution further provides that "the legislature may further restrict the jurisdiction of the court of appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved." Const. art. 6, § 9. Is there any restriction of the right of appeal in this statute? I have looked for it in vain. There are statutes giving an exclusive remedy where appeals have been restricted, but in such statutes there are provisions indicating the legislative intent to restrict a review by providing that the determination of the general term or appellate division shall be final. Questions of fact may arise, as to whether a ballot is marked for identification, or is torn by a voter or the inspectors of the election, or is marked otherwise than with a pencil containing black lead, which may depend upon the testimony of witnesses. In such cases a unanimous affirmance by the appellate division could not be reviewed by this court. Our power is limited to the review of the law, and we cannot review a reversal upon the facts. Const. art. 6, § 9. But there has been no reversal upon the facts in this case. The order of the appellate division is silent as to the grounds upon which it modified the order of the special term, and we must therefore assume that it was upon the law. Code, §§ 1338, 2082, 2087. The reversal being upon the law, we must review all questions of validity arising upon the ballots, and not depending upon extrinsic evidence. Such questions are purely conclusions of law based upon the ballots, the undisputed evidence in the case. There may be some doubt as to the conclusion reached by Judge GRAY with reference to three or four ballots. They are so near the border line that minds may well differ as to their validity. As to all of the other ballots, my views are in accord with those expressed by him in his opinion. Under the circumstances, I am inclined to yield to his views with reference to the ballots in doubt, and concur with his conclusions as to all of the ballots under review. O'BRIEN, J. This is an appeal from an order of the appellate division modifying, and in effect reversing, an order of the special term which awarded a peremptory mandamus directed to the board of county canvassers of Richmond county, commanding them to exclude certain ballots, and to inIclude certain other ballots, in ascertaining the votes legally cast at the recent election for George Cromwell and John L. Feeny, opposing candidates for the office of president of the borough of Richmond at the recent charter election in the city of New York. The appellate division, in modifying the order of the special term, gave directions to the canvassers with respect to the votes to be rejected entirely, and those which should be counted for each candidate. The | questions all arise under the law governing elections and the canvassing and counting of the votes under chapter 909 of the Laws of 1896. The controversy discloses the complicated character of that statute, and the obscure and cumbersome nature of many of its provisions. It is quite within the bounds of moderation to say that the citizen cannot now vote in such a way as to have his vote counted, especially if he desires to vote for candidates other than those upon the tickets of the two principal parties, without becoming familiar with a system of statute law containing 167 sections, some of which we have found quite difficult ourselves to understand. The public records show that at every election in this state many thousands of votes cast by the electors are rejected for some defect in the ballots used, and which are condemned, or supposed to be condemned, by the statute as void. The process of voting, to many uneducated persons, and to some who are educated, is so difficult that votes enough are thrown out by the canvassers in some cases to determine the result of the election. Whether it is wise to so frame laws that govern the casting and counting of votes at an election in such a way as to render it very difficult, if not impossible, for many of the electors to deposit a valid ballot in the ballot box, is a question for the legislature. It is quite apparent that under the present system the result of elections is not to be always determined by the will of the majority, since, unless they comply with all the provisions of the statute, their votes cannot be counted. The learned court below has very properly pointed out the dangers to free government that exist in the system of voting at elections which is so complicated that many of the electors are unable to comply with it, and we do not propose to further enlarge upon that subject, which would seem to demand the attention of the legislature, where, of course, it properly belongs. 23 App. Div. 201, 48 N. Y. Supp. 866. It is true that many of the mistakes in casting votes, and many of the defects in ballots, appearing in this case, which, under the statute, render the will of the citizen wholly ineffectual, are due to carelessness or ignorance; but a statute regulating voting at elections, and prescribing the manner in which the vote is to be counted, cannot be said to meet the wants of the public if it omits to take into consideration the fact that the vast body of men constituting the electorate of this state is composed of persons in all conditions in life, and of every grade of intelligence. Some are laboring under the physical and mental decay of old age, others are unable to read, and still others are unable, in the multitude of names printed on the ballot, to pick out and properly mark the candidates for whom they intend to vote, in such a way as to make their intention effective. The ballots furnished at this election contained eight columns, or regular party tickets, with as many voting spaces to the left, besides an Independent ticket, and a blank column or ticket, making ten tickets in all. In many cases the names of the same candidates appeared on two or more tickets. The result was that about 350 of the ballots were originally in dispute. The parties themselves seem to have settled the dispute by conceding certain ballots to be invalid, and withdrawing them from the litigation. About 185 were presented to, and passed upon by, the courts; and the appellate division allowed some ballots that the special term pronounced defective, and rejected some that it had held to be valid. In that condition the case comes here, and the first question suggested is whether such a controversy can properly come before this court. It would seem, at first thought, that after all the efforts made in recent years, in the constitution and by statute, to confine the jurisdiction of this court to questions of law properly arising or involved in the general development of the law, the court could not be converted into a board of canvassers to examine about 200 ballots, and determine how many of them should be counted for this candidate, and how many for that candidate; whether a cross within the circle was a good cross, and made with the right kind of a pencil; whether a voting mark opposite the name of some candidate was outside or inside the voting space; whether there were any marks or improper erasures on the tickets; and numerous other questions which the law seems to regard as important. If, however, the order appealed from is a final order in a special proceeding, I am unable to give any good reason why the parties are not entitled to have the question reviewed here. That it is a final order in a special proceeding, no one can doubt; and, under the constitution and the statute, any aggrieved party has the right to have such an order reviewed in this court. Moreover, orders in such proceedings, and arising under this very statute, have always been reviewed here; and, in view of the many recent decisions in appeals from such orders, it is too late to discuss the question as to the right of appeal, if there ever was any doubt about it. Emmett v. Ennis, 150 N. Y. 538, 44 N. E. 1102; In re Madden, 148 N. Y. 136, 42 N. E. 534; In re Fairchild, 151 N. Y. 359, 45 N. E. 943; People v. Board of County Canvassers of Onondaga Co., 129 N. Y. 395, 29 N. E. 327; People v. Collin, 19 App. Div. 457, 46 N. Y. Supp. 701, affirmed 154 N. Y. 750, 49 N. E. 1102. It is useless to attempt to find any distinction between these cases and the one at bar. There is no distinction. The cases cited all arose under this very statute as it existed at the time, and no change has since been made with respect to the right of appeal to this court, or which in any respect changes the character of the order. They are all cases in which the question was whether certain votes found in the ballot box should have been counted or rejected, and that is the question here, and the only question. The case presents no question of fact whatever. There was no question of fact presented to the courts below, and there is none now before this court, as to whether the disputed ballots were or were not marked for identification. The question that we have to deal with is whether the ballots which have been sent here with the record are such as may be counted, within the terms of the statute on that subject. That statute declares that, when a ballot discloses certain marks or physical appearance, it shall not be counted; and we have the ballots before us, with certain marks and appearances upon them, and whether they come within the condemnation of the statute is a pure question of law. Whether the condition of the ballot was due to the voluntary or involuntary act of the voter. is a matter of no consequence. Our duty is simply to apply a statute to conceded facts. It has been suggested that, since the election law does not in terms authorize an ap peal to this court, none will lie. But the election law is in precisely the same condi tion, so far as the right to appeal to this court is concerned, as it was when each of the above-cited cases were here; and to change the law to meet the varying exigencies of each particular case is an unmitigat ed evil, which every stable system seeks to avoid. It is no doubt true that cases of this character occupy much time and attention on the part of the court, in disposing of them. But that was always so, and it was just as strong an argument many years ago as it is now. Moreover, such a controversy involves important rights in the administration of municipal government, and sometimes may involve, in a broader field, the existence of the government itself. And it would be difficult, under such circumstances, to point out a function of this court more important than the settlement of such controversies. But the very point suggested against the right of appeal to this court has frequently arisen before, and been decided. The rule is that where any statute authorizes a special proceeding like this, which terminates in an order, without in terms giving the right of appeal to this court, an appeal will nevertheless lie in all such cases, under the general provisions of the Code, unless there are words found in the statute expressly restricting such right of appeal. In re Ryers, 72 N. Y. 1, 4; In re Brady, 69 N. Y. 215, 219, 220; In re Prospect Park & C. I. R. Co., 85 N. Y. 497; In re Swan, 97 N. Y. 492, 493; In re De Camp, 77 Hun, 480, 29 N. Y. Supp. 99. It was not suggested by counsel on either side that the order before us was not appealable here, and what I have said on that subject does not proceed from any doubt that I entertain as to its |