The signatures of the contracting parties were then upon the lease. This was a good execution of the new or modified lease. 7 Exch., 862; 4 Johns., 54; 13 Wend., 587; 9 East, 350; Leake's Cont., 814, 815. The transaction between the parties, as found by the Court, amounts to a re-execution and redelivery of the lease in its modified form, and it became as binding in that form as though it had been re-drafted and re-signed. Re-writing or re-signing, or both, would have added nothing to its validity. In all such cases the modification should be clearly established; but when so established it becomes binding as a new contract.

Judgment affirmed with costs.

Opinion by Follett, J.; Hardin, P. J., and Boardman, J., concur.

EVIDENCE.

N. Y. COURT OF APPEALS. Lewis, exr., respt., v. Merritt, applt.

Decided Feb. 10, 1885.

When a party gives material evidence as to extraneous facts which may or may not involve the negation or affirmation of the existence of a personal transaction with a deceased person, the adverse party may give evidence of extraneous facts tending to controvert such proof, although these facts may also incidentally involve the negation or affirmation of personal communications or transactions.

This was an action upon three promissory notes, brought by plaintiff as executor of the will of his mother. Plaintiff was called as a witness and testified that the notes in suit were for some time previous

to his mother's death kept in a tin trunk under her bed; that he saw them there the morning before she died, and on examining the trunk the following morning he found that the notes had been abstracted. They were afterwards found in defendant's possession, who, when they were demanded of him, refused to surrender them. Plaintiff also testified to facts showing defendant's presence in his mother's room during the last hours of her illness and the opportunity thereby afforded him to obtain unauthorized possession of the notes. The defence sought to be established was an alleged gift of the notes by the testatrix to defendant several days before her death, and some evidence was given in its support. Defendant was then called as a witness in his own behalf, and was asked whether he took the notes from any trunk or any person. This question was objected to and excluded and an exception taken. Defendant also testified to a conversation between the testatrix and one M. occurring in his presence some two days before the death of the testatrix. He then offered to show by his own evidence that at the time of this conversation he had possession of the notes. This was objected to by the plaintiff, and excluded, and an exception taken.

Daniel Morris, for applt.
M. A. Leary, for respt.

Held, Error; that the evidence excluded was competent. It was justified by the affirmative evidence given by plaintiff reflecting upon the same transaction and

communications. It was also competent for defendant to give evidence of any extraneous facts and circumstances which tended to show the falsity of the evidence given by plaintiff, although such facts also incidentally tended to establish the inference that a personal transaction or communication between the witness and the testatrix had taken place.

When a party gives material evidence as to extraneous facts which may or may not involve the negation or affirmation of the existence of a personal transaction or communication with a deceased person, the adverse party, although precluded from directly proving the existence of such communication or transaction, may give evidence of extraneous facts tending to controvert his adversary's proof, although those facts may also incidentally involve the negation or affirmation of personal communications or transactions. 88 N. Y., 447; 85 id. 639.

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered.

Opinion by Ruger Ch. J. All concur, Earl J. on first ground, Danforth J., absent.

PLEADING. FALSE IMPRISONMENT. MALICIOUS PROSECUTION.

N. Y. COURT OF APPEALS.

Actions for false imprisonment and for malicious prosecution, being for personal injuries, may be contained in the same complaint.

An order of arrest granted upon affidavit stating facts sufficient to give the judge jurisdiction will protect against an action for false imprisonment the judge who granted it and the party who procured it and instigated its service, although such order be afterward set aside on proof of extraneous facts. Even malicious motives and the absence of probable cause do not give a party arrested a cause of action for false imprisonment. In the action for malicious prosecution the burden of showing want of probable cause is upon the plaintiff.

When final judgment is entered in favor of a party on trial, the prosecution is so far terminated that he may sue for malicious prosecution.

The complaint in this action alleged two causes of action-one for malicious prosecution and one for false imprisonment.

A. Blumenstiel, for applt.
J. Langdon Ward, for respts.

Held, That as both causes of action were for personal injuries they could be contained in the same complaint. Code, § 484; 30 Barb., 300; 10 Hun, 580; 85 N. Y., 383, 389; 53 id., 14; 93 id., 515.

No objection was taken to the joinder in the answer or by de

murrer.

Held, That it was waived. Code,

$499.

It appeared that defendants procured an order of arrest against plaintiff under chapter 300 of Laws of 1831, known as the Stillwell Act, prior to its repeal by Chapter 245

respts.

Decided Jan. 20, 1885.

in the affidavit upon which the warrant was issued were sufficient

to give the judge who issued it jurisdiction. The fact that plaintiff had been before arrested in an action against him by defendants upon an order of arrest issued in the action for the same cause and upon substantially the same grounds being subsequently brought to his attention, he set it

aside.

Held, That the warrant was not void or irregular; that when the fact of the former arrest was brought to the judge's attention it furnished him a ground for the dismissal of the warrant in the exercise of further judicial action. A warrant granted under such circumstances protects against an action for false imprisonment the judge who granted it and the party who procured it and instigated its service. 14 C. B., N. S., 596; 11 Mass., 500; 3 Caines, 268; 5 Wend., 240; 11 id., 31; 5 Hill, 242; 19 Barb., 283; 3 Lans., 53; 7 id., 131; 52 N. Y., 409; 71 id., 106; 85 id., 383; 87 id.,

56.

If a warrant of attachment or an order of arrest is issued in an action upon facts giving the judge jurisdiction, and the defendant appears, and by showing new facts or denying those alleged against him pro

cures the attachment or order to be set aside, the process is not void or voidable, or irregular, but simply erroneous, and protects the judge. and the party who procured it against an action of trespass or false imprisonment. Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggra

vate his damage, but have nothing to do with the cause of action.

Also held, That an action for malicious prosecution could not be maintained.

In an action for malicious prosecution the burden of showing want of probable cause is upon the plaintiff.

The defendants appealed from the order discharging the plaintiff to the General Term, where it was affirmed, they then appealed to this court. While that appeal was pending this action was commenced. The appeal was afterwards dismissed on the ground that this court did not have jurisdiction to hear it. It was claimed that the prosecution was not terminated so as to warrant an action for malicious prosecution.

Held, Untenable. When a party has a final judgment in his favor upon a trial, the prosecution is so far terminated that he may sue for malicious prosecution. If an appeal be taken from the judgment, that may furnish a reason for staying the trial of the action for malicious prosecution until the decision of the appeal.

ming judgment for defendants, Judgment of General Term, affir

affirmed.

Opinion by Earl, J. All concur.

EASEMENT.

N. Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.
Luella S. Root, respt., v. Harriet
E. Wadhams, applt.

Decided Jan., 1885.

Where a grantor conveys a lot upon which, at the time of the conveyance, water flows from a spring upon another lot then owned and retained by the grantor, the grantee takes as an appurtenant the right to have the water flow as it did at the time of the conveyance to him; and,

as against the grantor, the rule is not

changed because a piece of land intervenes between the land conveyed and the land retained, through which intervening land the right to take the water is, by parol license, liable to be revoked by the

owner.

Be

Appeal from a judgment of Special Term, enjoining defendant from disconnecting or removing a certain pipe from a certain spring on defendant's land, which pipe is used to carry the water from the said spring across the land of an intervening owner to plaintiff's land. In 1865 one Bradbury was the owner of the lots now owned by the parties to this action. tween those two lots was a third lot owned by Beebe. Prior to 1865 Beebe, with the verbal consent of Bradbury, then owner of the spring lot, had laid a pipe and taken water from a spring on the lot now owned by defendant to his (Beebe's) lot and house, and has since taken water through such pipe from the spring until the supply was stopped by defendant in May, 1883. Prior also to 1865 one Merchant, then the owner of plaintiff's lot, and Bradbury's grantor of the same, with the verbal consent of Beebe and Bradbury, continued the pipe from the Beebe lot to the lot now owned by plaintiff, and from that time until May, 1883. Water was carried from said spring across the Beebe lot and to the lot owned by plaintiff through said pipe until

May, 1883. The pipe from the spring to the Beebe lot belonged to the owner of that lot, and the pipe from the Beebe lot to plaintiff's lot belonged to Bradbury when he sold plaintiff's lot to R. in 1870. R. conveyed to plaintiff in Feb., 1883. Bradbury continued to own the spring lot until his death, and it was sold to defendant by his executors in Feb., 1882. In May, 1883, defendant disconnected the pipes and stopped the flow of water through the same to plaintiff's premises.

Albert F. Gladding, for respt.
George W. Ray, for applt.

Held, That the judgment is correct. Had the two lots adjoined each other plaintiff would have acquired, under her deed, the right to the use of the water from the spring, as is claimed. The rule is not changed because a piece of land intervenes between the land conveyed and the land retained, through which intervening land the right to take the water is, by parol license, liable to be revoked by the owner. Bradbury owned both the servient and the dominant estate. As against himself he had the right absolute to use the water on plaintiff's lot as it was used when he sold it to R., who knew all the facts. He also had the right under the owner of the Beebe lot to use the pipe and carry the water through that lot so long as its owner did not object thereto or revoke revoke his license. When he conveyed the right to the use of the water of the spring as. then used passed as an appurtenant. Bradbury could not be heard

to object or permitted to obstruct such use, nor could he or his grantees of the spring lot defend the action now taken under the conceded right possessed by the owner of the intervening lot. The latter only could do that, and until he did it plaintiff was entitled to the accustomed use of the water. The following cases sustain this conclusion with more or less directness 84 Mass. (2 Allen), 543; 89 id. (7 Allen), 277; 13 N. J. Eq., 439; 102 Mass., 90; 65 How, 154; 47 N. Y., 73; 3 Paige, 254; 2 Wash. on Real Property, 2d. ed., 38. Conkhite v. Conkhite, 94 N. Y. 323, and Wiseman v. Lucksinger, 84 N. Y. 31, simply sustain the power of the owner of the Beebe lot to revoke the license to carry the water through it.

Judgment affirmed, with costs. Opinion by Boardman, J.; Harden, P. J., and Follett, J., concur.

PROMISSORY NOTES. EN

DORSERS.

N. Y. COURT OF APPEALS. Wyckoff, applt., v. De Graff, respt.

Decided Jan. 20, 1885. Where an endorser of a promissory note has had the same discounted, and thereafter upon the request of the maker and a prior endorser, made before maturity, and upon their promise to give him a new note therefor, takes the old note up when it fall due and before protest, as he claims, to save their credit, Held, that the obligation primarily incurred by him was a contingent one, which did not prevent such an express contract, and to sustain it it is enough that at the request of the prior endorser something was done which originally the last endorser had not undertaken to do.

Where no objections are taken at the trial to directions sending the exceptions to General Term in the first instance, it is too late to object in this court that the case was not a proper one to be heard at General Term in the first instance.

Reversing S. C., 15 W. Dig., 484.

This is an action upon six promissory notes. It appeared that one S., at different times between January 22 and February 6, 1880, made certain negotiable promissory notes, payable four months after date, in the aggregate amounting to $20,000; that he procured defendant to indorse them, and so indorsed they were, at the request of S., discounted by plaintiff, who transferred them for a valuable consideration to certain banks. On May 24, before the maturity of any of the paper, defendant stated to plaintiff that for causes mentioned he had become embarrassed and if he did not get help of those who held said notes he did not know how he would get through. On being informed that the notes were held by different banks he asked plaintiff to advance money and take them up, saying he would waive protest and give his own notes for the amount. After some further conversation plaintiff agreed to furnish the money to take up the notes, and in pursuance of that arrangement defendant waived protest, and as the several notes matured plaintiff advanced the money necessary to take them up. Defendant afterwards refused to give his notes for the amount, and thereupon plaintiff brought this action to recover the money so paid by him. Defendant denied that he requested