| N.Y. Sup. Ct. | Sep 15, 1892
Lead Opinion
1. Upon carefully reading the evidence found in the appeal book, we see that there is a conflict in the evidence in 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
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 No. 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 this 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. For example, the memorandum whicli was made 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. No 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 National Academy of Science at Boston in November, 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.: “Question. Were you present at that meeting when the following papers were read by Dr. Peters, (reading from pamphlet:) ‘No. 13. Peters, C. H. F., catalogue of stars from positions 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 National 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. I know the doctor was about the observatory.” The witness adds: “Not 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.
5. During the examination of the parties it appeared an application had been made to Prof. Boss of the Dudley observatory for the loan of some astronomical books known as the “Volumes of the Hichtrichten. ” When Prof. Boss was upon the stand he testified: “I think Dr. Peters wrote to mein 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 Prof. 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 gestee of the transaction, and that no prejudicial error was committed by the court in overruling the objection to the letters of Prof. 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. Insurance Co., 5 Hun, 102. Our conclusion is that the decision made at the circuit should remain. Judgment affirmed, with costs.
Merwin, J., concurs.
Dissenting Opinion
(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 three letters received by him from- Prof. 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 Prof. Hall, which were objected to on the ground that they were not competent, and that they were not shown toProf. Hall or his attention called to them when he was upon the witn.ess stand. The correctness of the decision in this caséis not sufficiently manifest to justify a disregard of these errors. For