Root v. Borst

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 62,36 N.E. 814
• Parties: ROOT v. BORST.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 62

36 N.E. 814

ROOT

v.BORST.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, fourth department.

Replevin by Edwin B. Root, as administrator, against Charles A. Borst. From a judgment of the general term (20 N. Y. Supp. 189) affirming a judgment for plaintiff, defendant appeals. Reversed.

For prior reports, see 9 N. Y. Supp. 789,20 N. Y. Supp. 189.

Wm. Kernan, for appellant.

Elihu Root, for respondent.

FINCH, J.

We are satisfied that the paper read by Dr. Peters before the National Academy of Science, and the letters addressed to him by Prof. Hall, were erroneously admitted in evidence, and that the vital question on this appeal is whether those errors can be disregarded as not materially affecting the result, and working no appreciable injury to the defense. That inquiry makes necessary some understanding of the facts, and of the character and tendency of the erroneous evidence. The form of the action was in the nature of a replevin, and the plaintiff, Peters, sought to recover possession of a manuscript catalogue of stars, the ownership of which he claimed. That manuscript was the work of the defendant and his two sisters, written upon paper prepared and paid for by him, steadily and continually kept and retained in his own possession, and which must be deemed to be his unless Peters has in some manner established a title to it in himself. The burden rests on him to show the acquisition of such a title, and any doubt about it must go to the benefit of the defendant.

The proof shows that Peters in his lifetime was director of the Litchfield Observatory at Hamilton College. He taught the class in astronomy, and received from the college a salary of $1,500, which was provided by the endowment of Mr. Litchfield, and which the college was unable to increase. The director's position was quite different from that of an ordinary professor. Beyond his work as a teacher, he was expected to make original observations and investigations, to be published with the aid of the patron of the observatory, or of other interested or generous friends, and so build up and broaden its scientific reputation. And, since the college was financially unable to pay him anything approaching a reasonable salary, it may easily be inferred that the director would be allowed and expected to do for himself much work of his own, for which he would not be accountable to the college, and which he could use or dispose of as he pleased. Such work Dr. Peters did. He gives us a description of it. Before coming to Clinton he began to make a collection of the positions of stars not on the general catalogues, but noted by different observers, who had selected them out from that faint and unobtrusive swarm not enrolled in any advertised galaxy. His collection was not a catalogue fitted for publication, but a gathering of loose material, lacking arrangement in scientific order. His original motive for the collection, and principal use of it, seem to have been to aid in the preparation of charts of the stars, a work of great magnitude and importance; and also to furnish him with what he calls ‘comparison stars,’ which he likens to the monuments of the ordinary surveyor, from which measurements are taken and courses run. Of these charts he had finished 20, but had planned 182, and had before him in that direction the study and work of years. In addition, he prepared for publication papers on the transit of Venus, and quite a serious investigation of solar spots.

The defendant graduated in 1881, and went into the observatory as an assistant. The exact character of his relation to the director and to the college is somewhat ambiguous, and open to different inferences. He was appointed by the director, and not by the college authorities, and seems not to have been regarded as a member of the faculty, and yet taught the classes in astronomy in the absence of the director, with the explicit assent of the trustees. Peters regarded him as his servant, and looked upon everything done by the assistant as done for him personally, and appurtenant to his interest and reputation; and yet it is obvious that the employment of an assistant originated with Mr. Litchfield, who suggested it, and promised to pay the necessary expense, acting in behalf of the college, assuming its appropriate burden, and notifying its treasurer of his purpose to pay the salary. He did pay it during his lifetime, although it was done through Peters, and to some extent, if not fully, the same payment was made after Mr. Litchfield's death by his son. It is quite probable that out of his own small salary, little more than enough to ward off starvation, Peters would have been very unlikely to have devoted one-third to the employment of an assistant. And yet it is very certain that Peters regarded Borst as his personal servant, and that the latter in the beginning drew no line of distinction between his work for the director personally and that which he did for him as one of the college faculty. Borst put in spape for publication the manuscript relating to the solar spots, assisted in the observations and calculations necessary for the star charts, and continued the entry of star positions in the books devoted to their collection. But, as Peters had liberty to use his own time for his own purposes, so far as it was not absorbed by his collegiate duties, so also Borst was free to use for himself the hours not due to the service which he owed Peters, and which belonged to himself alone; and this right, and the existence of such hours, Peters recognized, because he advised Borst to do some valuable work for his own benefit and reputation. The star catalogue in controversy was beyond a doubt the product of those otherwise unoccupied hours which belonged to Borst personally, and not...