Opinion by Danforth, J. All concur, not established except by the testi except Folger and Andrews, J.J., mony of the witnesses who confessed absent. DISBARMENT OF ATTORNEY N. Y. SUPREME COURT. GENERAL their perjury that the respondent knew that the depositions were false. Held, That although the evidence upon the application to disbar the respondent was insufficient to establish the charge made of suborning In the matter of Titus B. Eldridge. witnesses, yet the conduct of the re TERM. FIRST DEPT. Decided Nov. 6th. 1879. An attorney, for the purpose of procuring depositions of several witnesses, which should be as favorable for his purposes as possible, sent money beforehand to such witnesses in considerable sums, and prepared beforehand the answers to be made by them to the interrogatories annexed to the Com mission. The depositions of the witnesses proved to be almost wholly false; but it did not clearly appear that the attorney knew that the contents of the depositions were false. Held, That although the facts were insufficient to establish the charge of subornation of perjury, yet the conduct of the attorney was entirely improper and reprehensible, and deserved the censure of the court. The attorney was suspended for three years. spondent in sending prepared answers beforehand to the interrogatories prepared by him, and also sending money to the witnesses whose depositions he sought, deserves the censure of the court by such punishment as seems adequate to the character of the offence. Ordered, that the respondent be suspended from practising his profession for the period of three years. Opinion by Daniels, J.; Brady, J., concurring. Davis, P. J., dissents, holding that the real question is not whether the respondent is shown to have been guilty of the crime charged, but Application to disbar the respond- whether the respondent is shown to ent. The application was based upon the charge that the respondent had been guilty of the crime of subornation of perjury. The proofs submitted established that the respondent, an attorney at law, procured the depositions of various witnesses, and used such depositions in resisting the probate of a will; that the contents of such depositions were false, and that such have been guilty of such conduct as renders him unfit to remain a member of the profession. 36 N. Y., 651. We think the evidence establishes that the character of the respondent has been and is such as to render him unfit to enjoy the privileges of an honororable profession. EVIDENCE. SETTING ASIDE depositions were corruptly and inten- N. Y. SUPERIOR COURT. GENERAL tionally made by the witnesses, with knowledge of their falsity. It further appeared that the respondent sent money beforehand to the witnesses TERM. Charles L. Wright v. Adolph Lecour.. whose depositions were sought, and In the trial of an action in which the jury ren prepared beforehand and sent answers to be made to the interrogatories annexed to the commissions. But it was der a verdict which is clearly against the legal evidence in the case, the judge beforewhom the case is tried may set it aside and order a new trial. When it appears that the case has not materially changed after the plaintiff has rested his case, a verdict for the defendant may be set aside by the judge if against the evidence. Appeal from an order made by the judge before whom the case was tried, setting aside the verdict of the jury, as against the evidence, and granting a new trial. The action was to recover $405 for nine months' rent at $45 per month; the verdict was for only one month's rent. It was admitted by the defendant that he hired the premises for one month (May), but denied that he hired them for a year. F. J. Moissen, for applt. Held, That it appeared that the only dispute between them is as to fact whether the defendant, by refusing to sign a written lease for the year, justified him in believing that for that reason he was not bound to pay for that time whether he occupied for the whole period or not. He undoubtedly believed he was at liberty to abandon the occupation, and did so upon sending a notice to that effect to the plaintiff's agent. There is not, in fact, any evidence directly contradicting plaintiff's case when he rested. The law had fixed the rights of the parties, and mere notice of any kind could not help the defendant. Order affirmed with costs. chinery as the stream in its ordinary stages is adequate to propel, and, if the stream in seasons of drought becomes inadequate for that purpose, he has a right to detain the water for such a reasonable time as may be necessary to accumulate such a quantity as will enable him to use it for the purpose of his machinery. Plaintiff was entitled to the use of more than half of a certain stream, and operated his mill day and night. Defendant operated its mill, which was above plaintiff, only by day, but in seasons of drought shut its gates during the night, and thus accumulated enough water in its reservoirs, with the natural flow of the stream, to keep its mill running. Held, that the detention was not unreasonable, and that defendant was not liable to plaintiff for damages. Affirming S. C. 6 W. Dig. 129. This action was brought to restrain defendant from the use of certain appliances, by means of which it is enabled to maintain at its mill a uniform flow of water throughout the year, and for damages. It appears that plaintiff and defendant both owned and operated mills on a certain stream; that plaintiff was entitled to use more. than half of the water of said stream; that defendant's mill was situated above the plaintiff's; that the natural flow of the stream did not supply sufficient water to keep both mills running in time of drought. Defendant, by means of canals which it constructed around certain reefs above its mills, made subservient to its use in time of drought a large quantity of Opinion by Spier, J.; Freedman, J., water detained by said reefs, and deconcurred. RIPARIAN OWNERS. DETEN- Decided Sept. 16, 1879. A riparian owner has the right to erect a dam across the stream on his land, and such ma rived the same advantage as if it had constructed a dam at said reefs. By the manner of using its gates and canals defendant disturbed and interrupted the natural flow of the stream. It operated its mill by day only, and only interfered with the natural flow of the stream in times of drought and in the night season when it closed its gates and thus accumulated a sup ply of water in its reservoir sufficient, across a stream on his land, and with the natural flow of water, to such machinery as the stream in its keep its mill running during working ordinary stages is adequate to propel, hours. Plaintiff's mill was a paper and if the stream in seasons of drought mill, which was run night and day, become inadequate for that purpose, except on Sunday, it being necessary he has a right to detain the water for to do this in order to manufacture pa- such reasonable time as may be necesper with profit. The natural flow of sary to raise the requisite head and the stream was sufficient to keep accumulate such a quantity as will enplaintiff's mill running at all times. able him to use the water for the purThe closing of defendant's gate, and pose of his machinery. 13 Gray, 443; consequent stoppage of the water, com- 46 N. Y., 511. pelled the stoppage of plaintiff's mill at times to his damage. E. F. Bullard, for applt. Esek Cowen, for resp't. Judgment of General Term, affirming judgment dismissing complaint, affirmed, Opinion by Andrews. J. All concur, 'Held, That defendant having de- except Rapallo J., absent, and Dantained the water for the sole purpose forth J., not of court at time of arguof enabling it to use it to propel its ment. machinery in its mill, the detention MENT. INDORSE N. Y. COURT OF APPEALS. was not unreasonable, and it was not BILL OF LADING. in connection with the well settled Injury to one proprietor in consequence of the use of the water by another is not an invariable test of the right of such use; the law allows an appropriation of the water for domestic purposes or for the watering of cattle, although such use, by reason of the small amount of water in the stream, may be injurious to the proprietor below, and he may be thereby deprived of water sufficient for similar! purposes. The question of the reasonable use of the water of a stream is, ordinarily, one of fact to be determiued upon & consideration of all the circumstances. 3 Cai. 308, 74 N. Y. 341, 6 Exch., 352. A party has a right to erect a dam The Farmers' & Mechanics' Bank of Buffalo, respt., v. Hazeltine et al., applts. Decided Sept. 16, 1879. While a general indorsement and delivery of a C. Van Santvoord, for applts. the wheat and stored it with defendants, delivered it to him, they saw a copy who afterwards, on B's order, delivered it to of the bill of lading. one A. Defendants had, prior to that time, seen a copy of the bill of lading. A judg ment recovered by plaintiff against A for conversion of this wheat, not having been paid, this action was commenced. Held, Held, That plaintiff was entitled to recover; that defendants stand in no That plaintiff was entitled to recover; better position than Atkinson; that that defendants' stood in no better position having seen the indorsement upon the than A; that having seen the indorsement on the bill of lading they had notice that B bill of lading, they had notice that simply had possession in trust for plaintiff, Brown was simply vested with posand that the latter's title could not be di- session of the wheat, under a trust to vested by any act of B until actual payment hold it for plaintiff, and that the latter's title could not be divested by any act of Brown's until actual payment of his acceptance. of the draft. This action was brought to recover damages for the conversion of a cargo Also held, That a general indorseof wheat. The case of this plaintiff ment and delivery of a bill of lading against Atkinson, 74 N. Y., 587, was vests in the indorsee the title to the in relation to the same cargo of wheat, bill and the property represented by and was an action by plaintiff against it, so as to enable him to transfer to a Atkinson as purchaser of the wheat bona fide purchaser for value a good from one Brown, to whom the wheat title, whatever secret arrangement had been delivered by the defendants may have existed between the original here upon the order of Brown, from parties, but where there is an indorsewhom said defendants had received it ment which, in connection with a in store. A judgment was recovered special contract written over it, vests against Atkinson, and it not having in the indorsee simply the right of a been paid, this action was commenced. depositary, no such title will vest. Brown's only title to the wheat was 74 N. Y., 568, 587. under a bill of lading, delivered to him by plaintiff, upon which was stamped a statement addressed to Brown, in substance, that the wheat was pledged to plaintiff as security for a draft drawn upon Brown and discounted by plaintiff, the avails of which were used to pay for the N. Y. SUPREME COURT. GENERAL wheat; that the wheat was put in his custody in trust for that purpose, not to be diverted to any other use until the draft was paid, and that upon acceptance and payment of the draft, plaintiff's claim would cease. Brown accepted the draft and the bill of lading was delivered to him. It appeared that before defendants advanced upon the wheat to Atkinson or Vol. 9.-No. 1.* Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Andrews, J. All con cur. FALSE PRETENCES. TERM. FIRST DEPT. Decided November 6, 1879. In an indictment for false pretences it is not necessary that the false pretence be the sole or only inducement to the credit given, or the delivery of the goods made. It is enough that it has so material an effect in procuring the credit, or inducing a delivery of the property, that without its influence upon the t mind of the party defrauded, he would not construction of the Ninth District have given the credit or parted with the Court House, for which Court House property. the materials charged for in the bill purported to have been furnished. The bill was signed by the Commissioners and sent to the Comptroller's Office, where it was audited, and a warrant was prepared for its amount, which was certified by the Comptroller It is unnecessary that the false pretence should be such that 'common prudence or ordinary care would have guarded against it. Leading questions are admitted on crossexamination, in which much larger power are given to counsel than on the original examination, but upon cross-examination a leading question in respect to new matter is objectionable, yet the subject is within the and subsequently countersigned by discretion of the presiding judge. The limit of a cross-examination is within the discretion of the court, and a Court of Review will not condemn the limit observed unless it clearly appears that the discretion was abused to the prejudice of the party affected by it. the Mayor, to whom it was sent for that purpose. The audit was predicated of the bill thus certified by the Commissioners, and which, being thus certified and audited, became what is called a voucher, upon which the Certiorari to the Oyer and Terminer Comptroller and the Mayor both acted to review the conviction of the appel-officially in signing and countersigning lant of the crime of obtaining goods the warrant. It appeared from the by false pretences. The indictment testimony of the Mayor that his reliance was substantially upon these charged that the defendant obtained various forms of procedure, the primary from the Mayor, Aldermen &c., of one of which was the bill made out as the City of New York, money by means of false pretences made to A. Oakey Hall, then Mayor of the City of New York. The false pretences charged consisted in the presentation of a bill for materials furnished by one Davidson. The following is a copy shown, under the direction of the defendant. That paper formed the basis of the action of the Commissioners, of the Auditor, of the Comptroller, and of the Mayor. No verbal representations were shown to have been made by the defendant to the Mayor. All that was shown was the presentation of the warrant based upon the bill certified by the Commissioners, and audited by the Comptroller. The bill was false in every particular, No iron had been delivered, no cartage had been paid. It further appeared that the money obtained went into the hands of the defendaut. B. K. Phelps, for the People. Held, The defendant cannot escape from the conviction upon the ground urged by his counsel upon this appeal, that no representation was made by him personally to the Mayor. He can |