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[Vol. 97.

and say (p. 284): "If the defendant fail to do that, no matter how little proof the remaining issue may require, or how easily, or in what manner it may be established by evidence, the right of the plaintiff to open and close the case is not denied to him. (Mercer v. Whall, 5 Ad. & El. [N. S.] 447.)" WERNER, J., rests the general rule in Heilbronn v. Herzog (supra) upon Lake Ontario Nat. Bank v. Judson (supra). This was a trial judicially limited to a single question - revocation. The will is in existence. The signature is canceled by fourteen almost perpendicular ink lines drawn across it. This may or may not constitute revocation, and the purpose of the trial was to determine that one question. The fact that there is a question of revocation implies that there may not have been revocation. A verdict that there was no revocation would leave the will unrevoked. The presumption is that the cancellation was subsequent to execution. (1 Jarman Wills [R. & T. 5th Am. ed.] 304.) As I have said, the isolated fact that the signature to the paper was canceled is not enough to establish even a presumption of revocation. There is no presumption from the mere existence of the will that it was last in the possession or the custody of the testator. Hence, before even a presumption of revocation could be raised, it must be shown that the will, when found in the testator's possession or custody, was there found thus canceled. (Matter of Hopkins, supra. See, too, 1 Williams Ex. [R. & T. 7th Am. ed.], 207, 208; 2 Greenl. Ev. [15th ed.] § 681, note 7, citing cases which mark the distinction.) Upon the issue thus defined, if neither party had offered evidence which would prevail? Surely not he who asserted revocation, forasmuch as the cancellation of the signature was not enough even to raise a presumption that it was by the hand or at the instance of the maker of the will. As we have seen by the excerpt from the opinion in Lake Ontario Nat. Bank v. Judson (supra) it is of no moment how little proof may be required, or how easily it may be forthcoming, or in what manner, he who must produce it has the right to open the case. In Patten v. Cilley (46 Fed. Rep. 892) the court, per ALDRICH, J., in discussing this very question, say: "And by the term 'holding the affirmative' is intended the primary affirmative."

Wharton on Evidence (3d ed. § 894) says: "It is further clear that the burden of showing that a once valid will has been revoked

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SECOND DEPARTMENT, JULY, 1904.

by mutilation will lie upon the party who undertakes to prove the revocation," citing authorities. (And see Patten v. Cilley, supra; Farrell's Adm'r v. Brennan's Adm'x, 32 Mo. 328, 333; McClintock v. Curd, Id. 411; Higgins v. Carlton, 28 Md. 115, 143; Edelen v. Edelen, 6 id. 288; Singleton v. Singleton, 8 Dana, 315; Behrens v. Behrens, 47 Ohio St. 323; Jones v. Jones, 137 N. Y. 610; Bailey on Onus Prob., who cites some of these cases.)

The learned counsel for the executor says that "the general rule is laid down in the text books that in all controversies of this character the right to open and close lies with the proponent of the will," and cites an extract from 15 Encyclopædia of Pleading and Practice (p. 197). The material part as printed in their points is that the proponent has the opening and conclusion, "even in cases where a bill is filed to set aside a will already probated." But the learned counsel did not notice, at least they did not print, the full sentence in the encyclopædia, namely, "though the reason of this rule is not apparent, for it would seem that after probate the will should be presumed to be valid." (See p. 198.) The cases cited in the encyclopædia to support this sentence quoted by the executor may be discriminated. While they present the feature of a prior probate yet invariably on the trial in which the ruling was made the factum of the will was challenged anew, despite the prior probate, either pursuant to the practice or by direction of a statute. Thus in Mathews v. Forniss (91 Ala. 157) the decision is based upon Ill v. Barge (12 id. 687) and on Lyons v. Campbell (88 id. 462), and in both cases the statute afforded a bill in chancery whereby the entire issue was tried. Rigg v. Wilton (13 Ill. 15) is decided on the authority of Higdon's Heirs v. Higdon's Devisees (6 J. J. Marsh. 48) and of Rogers v. Thomas (1 B. Mon. 390). Higdon's Heirs v. Higdon's Devisees challenged the factum of a will, and so did Rogers v. Thomas, pursuant to the authority of a statute affording a bill in chancery for that purpose. Bevelot v. Lestrade (153 Ill. 625) was a bill to set aside the will for mental incapacity and undue influence, and so also was Vancleave v. Beam (2 Dana, 155). The other authorities cited by the learned counsel are chiefly in cases when the will must be established in the first instance no matter by how slight or by how formal proof; when APP. DIV.-VOL. XCVII.

9

SECOND DEPARTMENT, JULY, 1904.

[Vol. 97. the attack was upon the factum of the will, and not when, as under this issue, there was no question as to the factum of a will, but simply whether the testator had undone that which had been well done, and which, if he had not undone it, was still, in the eye of the law, well done.

The learned counsel for the executor insist that the contestant waived his right by this request: "I ask your honor to charge that the burden of proof is upon those proposing the will, namely, Mrs. Hopkins, to show that the marks on the signature were not made by Robert E. Hopkins." This was charged. The exact language of the request is important. It is not as to the burden of proof on the whole case, but as to the burden of showing that the marks on the signature were not made by the testator. It is true that the executor proved a prior and vain search for the will, but she thereafter proved by Mr. Warren that he finally found the will in a drawer of the testator's desk, in its present condition, i. e., with the ink marks across the signature. This, then, was evidence offered by the executor that the will in its present condition was last in the possession of the testator. Hence arose the presumption that the cancellation was by his hand, or at his instance (Matter of Hopkins, supra, 363), and, consequently, while the burden of proof upon the whole case never shifted, yet there arose the necessity of evidence on the part of the executor to show that the marks were not made by the testator. But assume that the request referred to the burden of the issue itself. The court had theretofore in effect ruled that the executor bore this burden when it gave to her the right to open the case. The contestant had excepted to this ruling, and I think that he did not waive his right to urge his exception upon appeal because he thereafter submitted to the law of that case as then decided by the court. In Fireman's Ins. Co. of Newark v. Schwing (11 S. W. Rep. 14), decided by the Court of Appeals of Kentucky, at the opening the court ruled as to the burden of proof and the appellant excepted. The court say: "It is also contended that the appellant waived its right to insist upon the alleged errors in this court for the reason that its counsel asked an instruction to the effect that the burden was on the plaintiff, and they must believe from a preponderance of the testimony that the fall of the building was the result of the fire before they can

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SECOND DEPARTMENT, JULY, 1904.

find for the plaintiff. The court had decided that such was the law of the case, and the defendant, having reserved his exception, was not required to further insist that his client had assumed or was entitled to the burden. He was left no other ground upon. which to base his defense, and was compelled to acquiesce."

The right sought was substantial, and the denial thereof was error. (Lake Ontario Nat. Bank v. Judson, supra, citing Conselyea v. Swift, 103 N. Y. 604.)

The order should be reversed and a new trial granted.

All concurred.

Order denying contestant's motion to set aside the verdict and for a new trial reversed, and motion granted, costs to abide the final award of costs.

In the Matter of the Application of H. LUTHER WEEKS, Relator, for a Writ of Certiorari, Directed to the BOARD OF TOWN AUDITORS OF THE TOWN OF HEMPSTEAD.

TREDWELL ABRAMS and Others, Composing the Board of Town Auditors of the Town of Hempstead, Respondents.

Town auditors—reconsideration of an audit — certiorari — proceedings subsequent to the issuance of the writ not reviewed.

A board of town auditors has power to reconsider its action in disallowing a claim.

Under a writ of certiorari the court may not review any proceedings which took place subsequent to the issue and service of the writ.

CERTIORARI issued out of the Supreme Court and attested on the 11th day of December, 1903, directed to Tredwell Abrams and others, composing the board of town auditors of the town of Hempstead, commanding them to certify and return to the clerk of the county of Nassau all and singular their proceedings had in rejecting a claim of the relator.

Fred Ingraham, for the relator.

George Wallace, for the respondents.

SECOND DEPARTMENT, JULY, 1904.

[Vol. 97.

JENKS, J.:

This is certiorari to review proceedings, decisions and actions of a board of town auditors upon a claim. The return shows that on December 2, 1903, this claim was taken up for consideration, and that, with the facts and matters before it, "above referred to, the Board did not regard the information sufficient to warrant them in deciding that the amount of bill presented was a proper charge against the Town of Hempstead," and that the bill was disallowed. But the return also shows that "subsequently, and after being advised by counsel, and thinking that possibly the relator should have had further opportunity to present any facts or evidence in relation to his claim on the 21st day of December, 1903, the Board reconsidered its action in disallowing the claim and adjourned to December 24th, in the afternoon, to give the relator opportunity to appear."

I think it quite clear that this board, being the same, had the power to reconsider the action of December 2, 1903. (People v. Stocking, 50 Barb. 573, 583; cited in Osterhoudt v. Rigney, 98 N. Y. 222, 234; People ex rel. Hotchkiss v. Supervisors, 65 id. 222; Adams v. Town of Wheatfield, 46 App. Div. 466.) The return also states that the board met on the 24th day of December, 1903, and decided to consider the claim upon a corrected bill on December 28, 1903, and that on that day it met and took action thereon. We cannot, however, consider as within the return any proceedings subsequent to December 11, 1903, the day of the issue and the service of this writ. (6 Cyc. 805, 806, citing Commissioners Court of Lowndes County v. Hearne, 59 Ala. 371; Bee v. Seaman, 36 W. Va. 381.) Nevertheless, we are apprised that the only action which can be brought up by this writ is not in any sense the final action of the board upon this claim, but that such action was supplanted by the subsequent proceedings indicated.

The action of December 2, 1903, then, prosents but a moot question, and one that neither deserves nor requires consideration, while the subsequent and final action of the board cannot be brought up by the present writ, for the reasons stated. We are constrained to

dismiss this writ, without costs and without prejudice.

The writ should be dismissed, without costs.

All concurred.

Writ dismissed, without costs.