Root v. Borst

20 N.Y.S. 189, 47 N.Y. St. Rep. 799

Opinions

Hardin, P. J.

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 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. Mayor, 96 N. Y. 567; Lowery v. Erskine, 113 N. Y. 52, 20 N. E. Rep. 588; Murray v. Murray, (Sup.) 16 N. Y. Supp. 363; Moulton v. Cornish, Id. 271.

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. 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 Prof. Hall, and iiis 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 that 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 Prof. Hall. The theory upon which the plaintiff produced Prof. 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. Bank, 49 N. Y. 581, Chief Judge Church, after reviewing the authorities bearing upon the rule of evidence, observes: “The result of ail 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 forthe purpose of eliciting 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 Prof. Hall’s explanation. Perhaps, however, we ought not to assume that he was not present. We think it appropriate to quote the language of Danforth, J., in Neil v. Thorn, 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 co.urt, he could not lawfully leave. Had it appeared that the witness left the court, and was not present when stated, 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 had the benefit of an exception.” It seems the 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 Prof. 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 Prof. 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 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.