THIRD DEPARTMENT, MAY TERM, 1902. [Vol. 72. Fielding was competent upon this trial upon the question whether he did or did not remember them upon Fielding's trial, the evidence should have been limited to that. His statements before that body concerning his connection with other crimes were inadmissible for any proper purpose. This evidence did not tend to prove a motive for committing the alleged perjury, nor the intent of defendant in committing it, nor identity, nor did it tend to prove that the perjury was not accidental, nor that the several distinct offenses thereby proved were part of a scheme of which the perjury was also a part. In order to render proof of other crimes competent it must fall within one of these requisites. (People v. Molineux, 168 N. Y. 264.) It was not rendered competent by showing it to have been testified to by defendant himself before the grand jury. It was simply proof of other and independent crimes and does not differ in respect to admissibility from evidence of such crimes derived from other sources. To emphasize this evidence, indictments against these various parties were put in evidence, and proof was allowed against defendant's objection and exception, that one of the persons indicted (Milne) had pleaded guilty and had thereupon been sent to the penitentiary. This, also, was error. The inquiry was whether the testimony of the defendant on the Fielding trial that he did not remember certain conversations with Fielding was false. The indictment against Milne was for conniving at the audit and allowance of a fraudulent claim against the city. What that claim was does not appear. Neither Milne's admission of guilt nor the character of his punishment were pertinent to the question of defendant's perjury. Taken in connection with the evidence of this defendant before the grand jury as to his transactions with Milne above alluded to, it was thus made to appear that the defendant was guilty of the crime of bribing Milne, and that Milne had confessed it. The necessary effect of all of this evidence was to incite in the minds of the jury a belief that the defendant was habitually criminal in all his dealings with the officials of Brooklyn, and thereby the more easily to persuade them that he was guilty of the perjury with which he was charged. There is no conceivable connection between these facts, and the evidence was clearly inadmissible. (People v. McQuade, 110 N. Y. 285, see p. 306; People v. Sharp, 107 id. at 466 et seq.) App. Div.] THIRD DEPARTMENT, MAY TERM, 1902. The admission in evidence of the several indictments against Willis and Phillips for conspiracy, against Willis for bribery, against Knapp for conniving at the audit of a fraudulent claim, against Milne for the same offense, against Clark and Leaycraft severally for accepting money to influence their acts as aldermen, and against Goff and Jensen for accepting bribes, was improper. An indictment is a mere accusation. It neither proves nor tends to prove anything even against the defendant named in it. Even a witness cannot properly be asked whether he has been indicted, because an indictment furnishes no proof of guilt, and to permit an affirmative answer might improperly influence the jury against his credibility. (Kober v. Miller, 38 Hun, 184, and cases cited.) These indictments bore no relation to any question involved in this trial. It was made to appear that they were found upon the evidence of the defendant above referred to and which connected him with each of the offenses named in them. It is obvious that this evidence could have had no other effect than to improperly influence the minds of the jury against the defendant. It was error also to permit to be read in evidence the remark of the presiding justice on the first trial of Fielding concerning this defendant to the effect that he was an unwilling witness. The opinion of the judge, thus proved, that the defendant was reluctant to tell the truth on that trial may well have influenced the jury to believe that he testified falsely on the second trial. (People v. Hill, 37 App. Div. 327; People v. Brow, 90 Hun, 509; People v. Corey, 157 N. Y. 332.) Other errors are alleged which it is unnecessary now to consider, inasmuch as those already mentioned require a reversal of the conviction. Judgment of conviction affirmed. Cases DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, May, 1902. In the Matter of the Application and Petition of MICHAEL T. DALY, as Commissioner of Public Works of the City of New York, Respondent, for and on Behalf of the Mayor, Aldermen and Commonalty of the City of New York, under Chapter 189 of the Laws of 1893, to Acquire Certain Real Estate, as the Term “Real Estate" is Defined in Said Act, for the Purpose of Providing for the Sanitary Protection of the Sources of the Water Supply of the City of New York. (Carmel, Lake Gleneida.) GEORGE R. COLE and Others, Appellants. Condemnation of a mill right for a city water supply — its value as a water power may be shown its value for storage purposes or to the city may not. In a proceeding by the city of New York to acquire the right of a person entitled to use, for mill purposes, the outlet of a lake, desired by the city for the protection of its water supply, evidence of the value of the defendant's right with reference to the utility of the lake as a water power is competent, but evidence as to the value of such right with reference to the utility of the lake for storage purposes or as to the value of the water of the lake to the city is incompetent. APPEALS by the claimants, George R. Cole and others, from an order of the Supreme Court, made at Dutchess County Special Term and entered in the office of the clerk of the county of Putnam on the 9th day of June, 1900, reversing and setting aside the fourth separate report of the commissioners of appraisal herein in certain respects. App. Div.] SECOND DEPARTMENT, MAY TERM, 1902. Isaac N. Mills, for the appellants Cole. Abram J. Miller, for the appellant Miller. Clayton Ryder, for the appellants, the trustees of Drew Seminary. H. T. Dykman, for the respondent. PER CURIAM: Upon carefully considering this case a second time, after the reargument which has been had, we are not prepared to say that the learned judge at Special Term erred in setting aside the report of the commissioners herein, so far as it affects the property of the appellants Cole. The principal portion of the award, amounting to $36,990, was directed to be paid to the owners of what is known as the Coles Parcel, No. 64, "for the rights of milling, all rights of pondage and all rights to raise and lower the waters of Lake Gleneida." Two kinds of evidence were received by the commissioners in regard to the value of the rights thus taken: (1) Evidence of its value as a water power; and (2) evidence of its value for the purposes of a storage reservoir. The first class of evidence was properly received. (City of Syracuse v. Stacey, 169 N. Y. 231.) The case cited, however, is an authority adverse to the competency of the second class of evidence. We think it is clear that the commissioners erred in taking into consideration the value of the Cole right with reference to its utility for storage purposes; and there was so much proof of this sort that we are strongly inclined to think that it must have influenced them in fixing the amount of damages. It is also to be observed that evidence was erroneously admitted as to the value of the water of Lake Gleneida to the city of New York. This proof is not sanctioned, as seems to have been supposed, by the decision of the General Term of this department in Matter of Gilroy (85 Hun, 424). It was there held that while in such cases as this the commissioners should take into consideration the availability of the property for use in connection with the water supply of New York city, the value of the particular property to the city, in view of its necessities, was not a legal measure of dam SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. ages. In other words, it was declared to be proper to consider, as an element in the market value of the property to be taken, the existence of a demand for such property on the part of the city; but this did not authorize an inquiry as to what that particular property was worth to the city. In a case of this kind, which relates to the rights of persons entitled to use the outlet of a lake for mill purposes, the information acquired by the commissioners in viewing the property to be taken is not of the same character or value as that obtained where the property viewed is merely a piece of land and includes no intangible rights. Here the view is manifestly less helpful, and more depends upon the character and weight of the expert evidence which is laid before the commissioners. Hence, the reception of incompetent evidence is more serious, for it is more likely to lead to an erroneous conclusion. On the whole, we are convinced that the Cole award would not have been as large as it is if the commissioners had not adopted an erroneous rule as to the measure of damages. As to the awards to the Drew Seminary and Henry F. Miller, however, the record discloses no sufficient reason for setting them aside, and we think they should have been allowed to stand. The order appealed from should be modified so as to confirm the awards of the commissioners to the Drew Seminary and Henry F. Miller, including costs and counsel fees, and as thus modified affirmed. All concurred; GOODRICH, P. J., concurring in result. GOODRICH, P. J. (concurring): Before the reargument of this appeal I had written my opinion, in which I arrived at the same result as that reached by my associates in the per curiam opinion, but for sufficient and other reasons than those set out therein; I deem it proper that these views should be expressed in a separate opinion. The proceeding was instituted under chapter 189 of the Laws of 1893, entitled "An act to provide for the sanitary protection of the sources of the water supply of the city of New York." The petition, which was filed in 1893, alleges that the city is constructing a reservoir in the town of Carmel, known as Reservoir D, and that it |