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The signatures of the contracting to his mother's death kept in a tin parties were then upon the lease. trunk under her bed ; that he saw This was a good execution of the them there the morning before she new or modified lease. 7 Exch., died, and on examining the trunk 862; 4 Johns., 54; 13 Wend., 587 ; the following morning he found 9 East, 350 ; Leake's Cont., 814, that the notes had been abstracted. 815. The transaction between the They were afterwards found in departies, as found by the Court, fendant's possession, who, when amounts to a re-execution and re- they were demanded of him, redelivery of the lease in its modi- fused to surrender them. Plaintiff fied form, and it became as binding also testified to facts showing dein that form as though it had been fendant's presence in his mother's re-drafted and re-signed. Re-writ- room during the last hours of her ing or re-signing, or both, would illness and the opportunity thereby have added nothing to its validity. afforded him to obtain unauthorIn all such cases the modification ized possession of the notes. The should be clearly established ; but defence sought to be established when so established it becomes
was an alleged gift of the notes by binding as a new contract.
the testatrix to defendant several Judgment affirmed with costs. days before her death, and some
evidence was given in its support. Opinion by Follett, J.; Hardin, Defendant was then called as a P. J., and Boardman, J., concur.
witness in his own behalf, and was
asked whether he took the notes EVIDENCE.
from any trunk or any person.
This question was objected to and N. Y. COURT OF APPEALS.
excluded and an exception taken. Lewis, exr., respt., v. Merritt, Defendant also testified to a conapplt.
versation between the testatrix and Decided Feb. 10, 1883.
one M. occurring in his presence
some two days before the death of When a party gives material evidence as to extraneous facts which may or may not
the testatrix. He then offered to involve the negation or affirmation of the show by his own evidence that at existence of a personal transaction with a the time of this conversation he deceased person, the adverse party may had possession of the notes. This give evidence of extraneous facts tending to controvert such proof, although these
was objected to by the plaintiff, facts may also incidentally involve the and excluded, and an exception negation or affirmation of personal com- taken. munications or transactions.
Daniel Morris, for applt. This was an action upon three M. A. Leary, for respt. promissory notes, brought by plain- Held, Error; that the evidence tiff as executor of the will of his excluded was competent. It was mother. Plaintiff was called as a justified by the affirmative eviwitness and testified that the notes dence given by plaintiff reflecting in suit were for some time previous upon the same transaction and
communications. It was also com- Actions for false imprisonment and for mapetent for defendant to give evi
licious prosecution, being for personal
injuries, may be contained in the same dence of any extraneous facts and
complaint. circumstances which tended to
An order of arrest granted upon affidavit show the falsity of the evidence stating facts sufficient to give the judge given by plaintiff, although such
jurisdiction will protect agaiost an ac
tion for false imprisonment the judge facts also incidentally tended to es
who granted it and the party who protablish the inference that a person- cured it and instigated its service, alal transaction or communication though such order be afterward set aside between the witness and the testa
on proof of extraneous facts.
Even matrix had taken place.
licious motives and the absence of prob
able cause do not give a party arrested a When a party gives material evi- cause of action for false imprisonment. dence as to extraneous facts which in the action for malicious prosecution the may or may not involve the nega
burden of showing want of probable tion or affirmation of the existence
cause is upon the plaintiff.
When final judgment is entered in favor of of a personal transaction or com- a party on trial, the prosecution is so far munication with a deceased per- terminated that he may sue for malicious son, the adverse party, although
prosecution. precluded from directly proving The complaint in this action althe existence of such communica- leged two causes of action-one for tion or transaction, may give evi- malicious prosecution and one for dence of extraneous facts tending false imprisonment. to controvert his adversary's proof,
A. Blumenstiel, for applt. although those facts may also incidentally involve the negation or
J. Langdon Ward, for respts. affirmation of personal communi- Held, That as both causes of accations or transactions. 88 N. Y., tion were for personal injuries they 447 ; 85 id. 639.
could be contained in the same Judgment of General Term, af- complaint. Code, S 484; 30 Barb., firming judgment on verdict for 300; 10 Hun, 580 ; 85 N. Y., 383, plaintiff, reversed, and new trial or- 389; 53 id., 14 ; 93 id., 515. dered.
No objection was taken to the Opinion by Ruger Ch. J. All joinder in the answer or by deconcur, Earl J. on first ground, murrer. Danforth J., absent.
Held, That it was waived. Code,
$ 199. PLEADING. FALSE IMPRISON- It appeared that defendants MENT. MALICIOUS PROSE- procured an order of arrest against CUTION.
plaintiff under chapter 300 of Laws N. Y. COURT OF APPEALS.
of 1831, known as the Stillwell Act,
prior to its repeal by Chapter 245 Marks, applt., v. Townsend et al,
Laws of 1880. The facts stated respts.
in the affidavit upon which the Decided Jan. 20, 1885.
warrant was issued were sufficient
to give the judge who issued it vate his damage, but have nothing jurisdiction. The fact that plain- to do with the cause of action. tiff had been before arrested in an Also held, That an action for action against him by defendants malicious prosecution could not be upon an order of arrest issued in maintained. the action for the same
In an action for malicious proseand upon substantially the same cution the burden of showing grounds being subsequently want of probable cause is upon the brought to his attention, he set it plaintiff. aside.
The defendants appealed from Held, That the warrant was not the order discharging the plaintiff void or irregular ; that when the to the General Term, where it was fact of the former arrest was affirmed, they then appealed to this brought to the judge's attention it court. While that appeal was furnished him a ground for the pending this action was commencdismissal of the warrant in the ex
ed. The appeal was afterwards ercise of further judicial action. A dismissed on the ground that this warrant granted under such cir
court did not have jurisdiction to cumstances protects against an ac- hear it. It was claimed that the tion for false imprisonment the prosecution was not terminated so judge who granted it and the party as to warrant an action for maliwho procured it and instigated its cious prosecution. service. 14 C. B., N. S., 596 ; 11
Held, Untenable. When a parMass., 500; 3 Caines, 268; 5 Wend.,
ty has a final judgment in his favor 240; 11 id., 31; 5 Hill, 242; 19 Barb.,
upon a trial, the prosecution is so 283; 3 Lans., 53; 7 id., 131; 52 N.Y.,
far terminated that he may sue for 409; 71 id., 106; 85 id., 383; 87 id.,
malicious prosecution. If an ap56.
peal be taken from the judgment, If a warrant of attachment or an
furnish a reason for order of arrest is issued in an action staying the trial of the action for upon facts giving the judge juris malicious prosecution until the dediction, and the defendant appears, cision of the appeal. and by showing new facts or deny.
Judgment of General Term, affiring those alleged against him procures the attachment or order to ming judgment for defendants,
affirmed. be set aside, the process is not void or voidable, or irregular, but simply
Opinion by Earl, J. All concur. erroneous, and protects the judge and the party who procured it
EASEMENT. against an action of trespass or
N. Y. SUPREME COURT. GENERAL false imprisonment. Even mali
TERM. FOURTH DEPT. cious motives and the absence of probable cause do not give a
Luella S. Root, respt., v. Harriet
E. Wadhams, applt. party arrested an action for false imprisonment. They may aggra
Decided Jan., 1885.
Where a grantor conveys a lot upon which, | May, 1883. The pipe from the at the time of the conveyance, water spring to the Beebe lot belonged to flows from a spring upon another lot then owned and retained by the grantor,
the owner of that lot, and the pipe the grantee takes as an appurtenant the from the Beebe lot to plaintiff's lot right to have the water flow as it did at belonged to Bradbury when he sold the time of the conveyance to him; and, plaintiff's lot to R. in 1870. R. conas against the grantor, the rule is not changed because a piece of land inter- veyed to plaintiff in Feb., 1883. venes between the land conveyed and the Bradbury continued to own the land retained, through which intervening spring lot until his death, and it land the right to take the water is, by was sold to defendant by his execuparol license, liable to be revoked by the
tors in Feb., 1882. In May, 1883,
defendant disconnected the pipes Appeal from a judgment of and stopped the flow of water Special Term, enjoining defendant through the same to plaintiff's prefrom disconnecting or removing a mises. certain pipe from a certain spring Albert F. Gladding, for respt. on defendant's land, which pipe is George W. Ray, for applt. used to carry the water from the Held, That the judgment is corsaid spring across the land of an rect. Had the two lots adjoined intervening owner to plaintiff's each other plaintiff would have acland. In 1865 one Bradbury was quired, under her deed, the right the owner of the lots now owned to the use of the water from the by the parties to this action. Be- spring, as is claimed. The rule is tween those two lots was a third not changed because a piece of lot owned by Beebe. Prior to 1865 land intervenes between the land Beebe, with the verbal consent of conveyed and the land retained, Bradbury, then owner of the spring through which intervening land lot, had laid a pipe and taken water the right to take the water is, from a spring on the lot now owned by parol license, liable to be reby defendant to his (Beebe's) lot voked by the owner. Bradbury and house, and has since taken owned both the servient and the water through such pipe from the dominant estate. As against himspring until the supply was stopped self he had the right absolute to by defendant in May, 1883. use the water on plaintiff's lot as Prior also to 1865 one Merchant, it was used when he sold it to R., then the owner of plaintiff's lot, who knew all the facts. He also and Bradbury's grantor of the same, had the right under the owner of with the verbal consent of Beebe the Beebe lot to use the pipe and and Bradbury, continued the pipe carry the water through that lot from the Beebe lot to the lot now so long as its owner did not object owned by plaintiff, and from that thereto revoke his license. time until May, 1883. Water was When he conveyed the right to the carried from said spring across the use of the water of the spring as. Beebe lot and to the lot owned by then used passed as an appurtenplaintiff through said pipe until ant. Bradbury could not be heard
to object or permitted to obstruct Where no objections are taken at the trial such use, nor could he or his
to directions sending the exceptions to
General Term in the first instance, it is grantees of the spring lot defend
too late to object in this court that the the action now taken under the
case was not a proper one to be heard at conceded right possessed by the General Term in the first instance. owner of the intervening lot. The Reversing S. C., 15 W. Dig., 484. latter only could do that, and until This is an action upon six promhe did it plaintiff was entitled to issory notes. It appeared that the accustomed use of the water. one S., at different times between The following cases sustain this January 22 and February 6, 1880, conclusion with more or less direct- made certain negotiable promissory ness : 84 Mass. (2 Allen), 543 ; 89 notes, payable four months after id. (Allen), 277 ; 13 N. J. Eq., date, in the aggregate amounting 439 ; 102 Mass., 90; 65 How, 154; to $20,000; that he procured de47 N. Y., 73; 3 Paige, 254 ; 2 fendant to indorse them, and so Wash. on Real Property, 2d. ed., indorsed they were, at the request 38. Conkbite v. Conkhite, 94 N. of S., discounted by plaintiff, who Y. 323, and Wiseman v. Luck- transferred them for a valuable singer, 84 N. Y. 31, simply sus- consideration to certain banks. tain the power of the owner of On May 24, before the maturity of the Beebe lot to revoke the license any of the paper, defendant stated to carry the water through it. to plaintiff that for causes men
Judgment affirmed, with costs. tioned he had become embarrassed
Opinion by Boardman, J.; Har- and if he did not get help of those den, P. J., and Follett, J., concur. who held said notes he did not
know how he would get through. PROMISSORY NOTES. EN
On being informed that the notes DORSERS.
were held by different banks he
asked plaintiff to advance money N. Y. COURT OF APPEALS.
and take them up, saying he would Wyckoff, applt., v. De Graff,
waive protest and give his own respt.
notes for the amount. After some Decided Jan. 20, 1885.
further conversation plaintiff Where an endorser of a promissory note agreed to furnish the money to has had the same discounted, and there
take up the notes, and in pursuafter upon the request of the maker and a prior endorser, made before maturity,
ance of that arrangement defendand upon their promise to give him a new ant waived protest, and as the note therefor, takes the old note up when several notes matured plaintiff adit fall due and before protest, as he
vanced the money necessary to claims, to save their credit, Held, that
take them up.
Defendant afterthe obligation primarily incurred by him was a contingent one, which did not pre- wards refused to give his notes for vent such an express contract, and to the amount, and thereupon plainsustain it it is enough that at the request tiff brought this action to recover of the prior endorser something was done which originally the last endorser bad
the money so paid by him. Denot undertaken to do.
fendant denied that he requested