
    Edwin B. Root, Administrator, Resp’t, v. Charles A. Borst, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 30, 1892.)
    
    1. Replevin—Evidence—Memoranda.
    In an acti-'n of replevin for i he recovery of a catalogue of the posil io > < " stars, made by plaintiff while i i charge of an observatory, and t"h-" •■which was claimed by defendant, plaintiff was permitted to introduce in evidence, after objection, memoranda which he had made to be used in the preparation of a preface to the catalogue; plaintiff had been permitted to testify that he had made written memoranda preparatory to a preface, without objection. Held, that the introduction of the memoranda was not prejudicial to the defendant.
    3. Same—Cross-examination.
    A witness testified that plaintiff went to the National Academy of Science in 1886, and there gave a description of the catalogue. Upon cross-examination he was asked if he were present at the meetings of the academy at that time; if a pamphlet produced was a correct record of the session, and if he was secretary, to all of which he answered yes; he was then asked if the plaintiff there read selections from the catalogue, and, after objection being overruled, answered yes. Held, that the ruling was correct. ^
    3. Same—Production of letter of witness when not present. '
    H., a witness, upon cross-examination, testified: “ I had a correspondence with plaintiff; I had the impression that he had collected the position of stars.” After this testimony an adjournment was taken. At the next hearing plaintiff produced several letters received from H., and offered to read portions relating to the catalogue in evidence. They were objected to as incompetent, and that they were not shown to H. when present as a witness. Whereupon the court said: “ By way of cross examination cf H., I will receive them.” No objection "as to the genuineness of the letters was made, nor did defendant ask for time to produce H. to explain the letters. Held, that the admission of the letters was not prejudicial to the defendant.
    4. Same—Bes gestee.
    It appeared that application had been made to B. for the loan of some books.- When B. was upon the stand he testified: “I think plaintiff wrote to me in reference to the books.” As bearing, upon this question, letters of B. were produced by plaintiff. Held, admissible as part of the res gestos of the transaction.
    (Martin, J., dissents.)
    Appeal from a judgment entered in Oneida county upon a ■decision made by the circuit court without a jury in an action of •replevin wherein Doctor Peters, deceased, was plaintiff, he having died subsequent to the trial.
    Plaintiff in his complaint alleged that on or before the 17th day •of December, 1887, at Clinton, the defendant “ wrongfully took •and wrongfully detains from the said plaintiff ” the property described in the complaint; and the complaint alleged that plaintiff demanded a return of said property, and that the defendant refused to return and surrender the possession of the said property. In the complaint the property is described as follows, viz.: “ 1. A book (in quarto) forming volume 2 of Dr. Peters’ collection of star positions. The book contains also additions of J. Gr. Porter’s hand, and a few of Mr. Borst’s and of about or over 8,000 positions.
    “2. A manuscript, consisting of about 800 sheets (foolscap size, ruled and written closely on both sides). The nucleus of this MS is a copy from volumes 1 and 2 of the above mentioned collection, but compiled in Order of right ascension of the stars. It is in two parts, the first series of the stars being for the year 1850, .and the second for the year 1875. Included in this compilation are also the star determinations, made with the equatorial of the Tiitchfield Observatory, and it contains many notes of my hand.
    
      “3. A manuscript copy of the preceding (the sheets in large folio, written on both sides) made because the latter had become too overcrowded by the insertion of stars from other sources, formerly not considered. The following sheets will show incompleteness in several of the columns, especially in the first one.
    “4. Papers (in loose sheets, mostly in quarto) containing in Dr. Peters’ handwriting abstracts, intended to be inserted in the foregoing MS., from the various Greenwich publications, from the Madras, and from the Cape of Good Hope observations, etc., made by Dr. Peters.” .
    The answer contained a denial of the allegations of the complaint, and it alleged that the “plaintiff is not and never was entitled to the possession thereof or of any part thereof; and alleges that said defendant was on and before the 17th day of December, 1887, ever since has been and now is the lawful owner thereof and of each and every part thereof, and lawfully entitled to the possession thereof and of each and every part thereof, with the exception of the chattel in folio 7 of said schedule 1 A ’ attached to said complaint, described therein as follows, viz: 1A book (in quarto) forming volume II. of Dr. Peters’ collection of star positions; * * * which said chattel defendant alleges belonged on or before December 17, 1887, ever since has belonged and now belongs to the trustees of Hamilton College at Clinton, H. Y., and was duly delivered by said trustees on or before December 17, .1887, to defendant, and into his possession, and defendant alleges that he ever since has been and now is lawfully entitled to the possession of such chattel, and defendant alleges that he retains and holds the same and possession thereof by virtue of authority from said trustees and by virtue of a special property therein as aforesaid.”
    The court found as fact that the Litchfield Observatory, situated at Clinton, and the astronomical instruments and apparatus therein and connected therewith, belonged to and were the property of Hamilton College, a corporation located at Clinton. That since the year 1858 Dr. Peters had been the director of said observatory, having been employed by Hamilton College at an annual salary paid to him by said Hamilton College. That the defendant m 1881 graduated from Hamilton College and “ went to the observatory as an assistant and remained there as such assistant until about the 1st of January, 1888. That his salary for the first ^year was $500, and for the subsequent years $600 per
    . A*?0’ “ the duty of the said defendant as such assistant in the observatory was to aid and assist the plaintiff in the work carried, on at said observatory and he remained in that position until the trouble between the parties as to the ‘Star Catalogue’ began, about the 1st of January, 1888.” And also found that lir. Peters m 1850, while at Constantinople, and before he came to this country to reside, “ first conceived the idea of making a otar Catalogue.’ He then began to accumulate the material, using the book known in this case as‘Exhibit 1.’ This book was used for this purpose before and after he came to this country and became connected with Litchfield Observatory, and down to the year 1862. This book then became substantially filled with materials, about 7,800 star positions having been entered therein.” The court also, found that the exhibits 2, 4, 5, 6 and 8 are the chattels which are the subject of this action.
    The court also found “ That the plaintiff regarded this catalogue all along as his own work; that he never consented to surrender it to the defendant; that he intended to give defendant full credit for all he did upon or with reference to it. That the defendant as he became familiar with the work and learned how to manage its details, conceived the design of appropriating the whole work to himself, and depriving the plaintiff of all credit for, or reputation growing out of it. That defendant on or about the 17th day of December, in the year 1887, at Clinton, in the county of Oneida, wrongfully took and wrongfully detained from said plaintiff the articles of personal property known on the trial as exhibits 2, 4, 5, 6 and 8. . That prior to the commencement of this action the plaintiff duly demanded of said defendant the return of said property, which return the said defendant has refused.” The court also found: “ That the books and manuscripts known as exhibits 2, 4, 5, 6 and 8 were, at the time of the commencement of this action, the property of the plaintiff, who was then and is now entitled to the possession thereof; and the court, found the value of them to be $2,260 and that the plaintiff had suffered six cents damages by reason of the unlawful detention of said property.
    As conclusions of law the court found as follows :
    “ L That the books and manuscripts in question and the work intended to be published as a ‘ Star Catalogue,’ did not belong to the Litchfield Observatory or to Hamilton College.
    “ 2. That the property in these books belonged to the plaintiff and to him alone.
    “ 3. That the books and manuscripts known as exhibits 2, 4, 5, 6 and 8 were at the time of the commencemént. of this action the property of the plaintiff.
    “ 4. That the plaintiff is entitled to recover from defendant the possession of the chattels known in the action as exhibits 2, 4, 5, 6 and 8, the value of which is hereby affixed at $2,260, with six cents damages, and, the costs of this action.
    The defendant seasonably filed exceptions to the findings of the court as to the facts and as to the law, and made several requests for additional findings, some of which were yielded to and some of which were refused. The trial was commenced January dl, 1889, and on the 1st day of February it was adjourned to the 7th day of February. . ,7 „ , ■,
    . ,7 „ , William, Kernan, for app’lt; K D. Matthews, Ehhu Boot ana H. M. Love, for resp’t.
   Hardin, P. J.

—Upon carefully reading the evidence found in the appeal book, we see that there is a conflict in the evidence m respect to the paramount question involved in the issue between the parties. Plaintiff asserted upon the trial property in and ownership of the articles described in the complaint and particularized in the evidence. Defendant, as a witness, contradicted the plaintiff in many respects and called witnesses tending to substantiate the position taken by the defendant. On the other hand, the plaintiff as a witness, and with other witnesses more or less supporting his theory of the case, gave evidence tending to show an ownership of the property in question. The trial judge saw and heard the witnesses at great length; he had an opportunity to investigate their frankness, honesty and intelligence and freedom from bias, or to discover their mistakes or coloring of circumstances and events to favor the theory put forth by the party in whose interest the testimony was given. The trial judge “ has made up his mind where the right and truth lies.” We are not prepared upon a careful inspection of the evidence to interfere with his findings upon the conflicting evidence. See Roosa v. Smith, 17 Hun, 138; Baird v. The Mayor, 96 N. Y., 567; Lowery v. Erskine, 113 id., 52; 21 St. Rep., 917; Murray v. Murray, 41 id., 428; Moulton v. Cornish, id., 41.

(2) After the defendant had rested, the plaintiff was called to the stand, and testified that the defendant had asked him to write a preface; and he added: “ He did not ask me to write the preface for him as a preface for his work. After the talk about making a preface I did not commence the preparation of notes for making a preface. These written memoranda which I now produce I made during the progress of the work, which I intended' to use in the preparation of the preface.” The case then states, viz.: “ A package of papers being the memoranda in question were here marked Exhibit Ho. 58, and were offered in evidence by the counsel for the plaintiff Counsel for the defendant objected to them as incompetent and not evidence against the defendant. Court overruled the objection and admitted the evidence, to which ruling and decision counsel for the defendant excepted. Papers were read in evidence, and may be produced by either party on argument of. the case.

“ The court said: I receive this upon the theory which we have received more or less evidence of which Mr. Borst did, which, it is claimed, were brought to the knowledge of the plaintiff. Eor example, the memorandum which was brought before; the exhibits 4 and 5; it is not claimed that the doctor saw that.” The exhibit is not printed or found in the appeal book. The plaintiff was allowed to testify that he had made written memoranda preparatory to a preface, without objection. Ho witness was called to contradict the plaintiff in that regard. We see nothing in the ruling prejudicial to the defendant.

(3.) During the cross-examination of Dr. Hall he was asked if he was present at a meeting of the Hational Academy of Science at Boston in Hovember, 1886, and he testified that he was; and he also testified that the pamphlet produced was a correct record of the session, and that he was secretary. He was then asked, viz: “ Q. Were you present at that meeting when the following papers were read by Dr. Peters: (Beading from pamphlet) ‘Ho. 13, Peters, C. H. F., catalogue of stars from position in various astronomical periodicals?’ ” This question was objected to, and the objections were overruled, and the defendant excepted. The witness answered “I was present.” The defendant had testified that. “ Dr. Peters went to Boston in the fall of 1886.” He also testified “he went to'the Hational Academy of Science, and gave a description of this catalogue, and did not tell me anything about it.’ It seems the defendant saw some notice in the Tribune, and held a conversation with Dr. Peters after he came back in respect to the “ description of the catalogue ” made at the meeting. We think the ruling made by the court was not erroneous.

(4.) The defendant testified that “Dr. Hall visited Dr. Peters at the observatory in August, 1885. Dr. Hall and myself had the conversation in the observatory. Dr. Peters was present.” The defendant then details a conversation held with Dr. Hall, and adds again, viz: “This conversation was in Dr. Peters’ presence. He sat in the chair at the desk, smoking his cigar and looking out of the window.” Dr. Hall was called by the defendant as a witness, and testified to the interview held" with the defendant in August, 1885, at the Litchfield observatory; and he says: “ There was only one occasion when we were examining the manuscript, and had a talk about it in the observatory. 1 know the Doctor was about the observatory.” The witness adds, “Hot a word was said by Dr. Peters.” When Dr. Peters was called to the stand he testified as follows': “I heard the defendant sworn and heard his statement as to the conversation with Dr. Hall. I was not at that time, or at any time, present, nor did I hear any such conversation. I was not present at the conversation between him and- Dr. Hall, which he gave. I remember when Dr. Hall visited Clinton, the year he refers to.” In the course of the cross-examination of Dr. Hall, he mentioned, viz.: “I had a correspondence with him (Dr. Peters).” He also testified: “I have this impression that Dr. Peters had collected the positions of stars, and I knew of it and saw some memoranda of it.” It seems that after Dr. Hall’s testimony was given the cause was adjourned from the 1st of February to the 7th of February, and on the adjourned day the plaintiff, being upon the stand, produced several letters received from Dr. Hall dated in 1886, and offered to read them in evidence.. They were objected to as not competent and “ that they were not shown to Professor Hall and his attention was not called to them when here as a witness on the last hearing.” Thereupon plaintiff’s counsel offered to read from the letters paragraphs which related to the catalogue. Plaintiff’s counsel stated the letters show Dr. Hall’s understanding as to whose catalogue this was, and they show that he could not possibly have received an impression from any conversation that this was the defendant’s catalogue. Thereupon the court said: “ By way of cross-examination of Dr. Hall I will receive, them.” The court overruled the objection and admitted the letters in evidence, to which ruling and decision the counsel for the defendant excepted. (The letters were here read in evidence.) We think we should not disturb this decision on account of this ruling:

First. The genuineness of the letters- was not objected to by the defendant, either at the trial or upon the argument before us. Apparently the letters were shown to the defendant when he was upon the stand as a witness and he admitted the handwriting of Professor Hall.' The theory upon which the plaintiff produced Professor Hall’s letters was that they were inconsistent with his testimony and were offered and received by the court for: the purpose of impairing his credibility.

In Romertze v. East River National Bank, 49 N. Y., 581, Chief Judge Church, after reviewing the authorities bearing upon the-rule of evidence, observes “ The result of all the authorities is-that it is sufficient for a party, proposing to impeach a witness by proving inconsistent written statements, to show him or read to him the paper, and, if its genuineness is admitted, to introduce it; when he has a right to put in evidence; and that it is not the legal right of the other party or the witness to enter into any explanation of the contents of the paper until after it has been introduced in evidence. The court may doubtless permit the explanation in the first instance and may vary the order of proof in this as in many other cases for the purpose of elicting truth and preventing injustice. Many questions of this character are within the discretion of the court.” In that case it was held that, “ The; plaintiff offered the paper at the right time and it was error to reject it.”

In Clapp v. Wilson, 5 Denio, 285, it was held, “A party in a suit may give in evidence, to impeach the credit of a witness of his adversary, a written or sworn statement of such witness, made on another occasion, contradicting his testimony then given, without calling the attention of the witness to it, otherwise than by giving it in evidence on the trial.”

If the defendant had asked for time or opportunity to produce the witness to explain the letters, doubtless it would have been error to have used the discretion in such a .way as to deprive the defendant of Professor Hall’s explanation. Perhaps, however,, we ought not to assume that he was not present. We think inappropriate to quote the language of Danforth, J., in Neil v. Thorn et al., 88 N. Y., 276, as applicable to the suggestion made by the counsel for the appellant: “If the defendants were prejudiced by the ruling, it was their duty so to present the case upon appeal that his absence and their inability to obtain him should be made-apparent A witness once summoned and called to testify upon-a trial is presumed to be present until its conclusion. It is his. duty to be in court, and without consent of the opposite party or permission of the court he could not lawfully leave. Had it. appeared that the witness left the court and -was not present when wanted, it would have been in the discretion of the judge to suspend the trial until he could be again brought in. Rapelye v. Prince, 4 Hill, 119. If that was refused, the defendant might, perhaps have bad the benefit of an exception.”

It seems tfie object of showing a letter or document to a witness is to give him an opportunity to admit or deny its genuineness. It is apparent that the genuineness of Professor Hall’s letters was admitted at the trial, as no question was made there, or is made before us, as to the genuineness.

Second. We think from the appeal book it is manifest that the plaintiff offered the letters of Professor Hall for the purpose of bearing upon his credibility, or perhaps, more correctly speaking, the accuracy of his memory, and were intended to be received by the court for no other purpose.

We are inclined to agree with the counsel for the appellant that “ the letters do not contradict the testimony of the witness given in the trial” in any essential respect; and we think we should be warranted in saying that their admission was not prejudicial to the defendant. ,

(5) During the examination of the parties, it appeared an application had' been made to Professor Boss, of the Dudley Observatory, for the loan,of some astronomical books, known as “ the volumes of the Mchtrichten.” When Professor Boss was upon the stand he testified : “I think Dr. Peters wrote to. me in reference to the books.” A question arose in the evidence whether the books were written for' by the defendant or by Dr. Peters,,and as bearing upon that question the letters of Professor Boss were produced by the plaintiff, and when an objection was made to their reception, the court observed: “ The object of the letters is to show that the volumes were sent to the plaintiff.” We think they were admissible as part of the res gesta of the transaction, and that no prejudicial error was committed by the court in overruling the objection to the letters of Professor Boss.

Upon a careful examination of the appeal book we have not found any “strong grounds to believe that the merits have not been fully and fairly passed upon ” by the trial court, and we discover nothing in the case to indicate that a new trial would be more likely to result in a more just conclusion than the one reached at the circuit. Hotchkiss v. Germania Fire Ins. Co., 5 Hun, 102.

Our conclusion is that the decision made at the circuit should remain.

Judgment affirmed, with costs.

Merwin, J., concurs.

Martin, J.

(dissenting)—On the trial the plaintiff was permitted to introduce in evidence memoranda which he had made to be used in the preparation of a preface to the catalogue which was the subject of litigation. This evidence was objected to as incompetent and not evidence against the defendant. The court overruled the objection and admitted the evidence, and the defendant excepted. The papers were then read in evidence and were produced upon the argument of the case. It will be observed that these written memoranda were made by the plaintiff, had never been seen by the defendant, and were at most written statements made by the plaintiff in his own favor. I think the admission of this evidence was error

The plaintiff was also permitted to introduce thiree letters' received by him from Professor Boss, to show that certain books were sent to the plaintiff and not to the defendant. These letters were objected to by the defendant, the objection overruled, and the defendant excepted. I think this exception was well taken,

I am also of the opinion that the court erred in admitting in; evidence the letters of Professor Hall, which were objected to on the ground that they were not competent and that they were- not. shown to Professor Hall or his attention called to them when he was upon the witness stand.

The correctness of the decision in this case is not sufficiently manifest to justify a disregard of these errors. For these, and. other errors committed on the trial to which special attention! need not be given, I think the judgment should be reversed and aj new trial ordered.

Judgment affirmed, with costs.  