126 N.Y.S. 514 | N.Y. App. Div. | 1910
The plaintiff’s barge Macy was sunk in the North river on February 12, 1907, and on February fourteenth the tug Hiawatha collided with the wreck, whereupon, to 'recover damages for the injury, her owners libeled the Macy in the District Court for the Southern District of New York for negligent failure to mark immediately the place where the Macy sank, in the manner prescribed by the Federal statute. (Act of March 3, 1899 [30 U. S. Stat. at Large, 1152], § 15.) The plaintiff here, respondent there, pursuant to the 59th rule in Admiralty, brought in Baxter, the present defendant, alleging that by contract between them the latter agreed to perform the statutory duty of marking the place of the wreck, and to raise .her. The District Court, after hearing the case on the merits, decreed that the Macy was liable for the injury to the Hiawatha, but dismissed the petition bringing in Baxter, “ not upon the merits, it being considered that the question of the liability of ” ■ Baxter “ must be determined in a separate action.” Thereupon the present plaintiff appealed to the United States Circuit Court of Appeals, where the action was heard upon the merits on the same evidence, and that court, as appears from the opinion (The Macy, 96 C. C. A. 146), considered that on the merits Baxter did not undertake to perform the statutory duty of marking the. wreck, thereby impliedly deciding that Baxter was before the court under the 59th rule. The opinion stated: “ The decree of this District Court is affirmed with interest, and with costs to Baxter against the Macy." Had the mandate followed the opinion, a decree entered pursuant thereto without question would estop the plaintiff in the action at bar.
It is not for this court to affirm that the United States Circuit Court of Appeals did something that under the Federal practice it had no right to do. It was within its ¡lower to reconsider its decision and determine that the petition should be dismissed, but not on the merits, and it was not constrained to express its changed view in an opinion or other writing, but it did indicate its consideration of the matter by adjudging that the decree should be dismissed,-not on the merits, in unequivocal language, and so its decree and that of the District Court stands. It is not the duty of this court to revise it, or to determine that some other or different decree should be entered, or that it does not mean what it states, or that its effect and scope should be what the opinion, if preserved as the decision of the court, would ascribe to it. Assume that the United States Circuit Court had in its opinion concluded that Baxter was properly brought in, was not liable, and had, in manifest excess of power, ordered a new trial in the District Court. This court could not refashion its decree to fit its decision. What its decree is, it is, whether founded on error in practice or in decision, and back to the court that made it Baxter should have gone if he would have its decree conformed to ' an alleged finding. The appellant was properly denied in his attempt to show aliunde that the Federal decree was an estoppel,
The objection that what Hill said to Baxter through the telephone was not admissible is untenable. The telephone has become a common means of communication between persons not face to face. The' appellant’s proposition is that, if A "and B concededly have a conversation over a telephone,. A can testify only to what lie heard, and B to only .what he heard, and that neither can testify, to what lie said. Such rule would admit fragments of conversation, may be meaningless, and probably uninstructive." The conversation, that is what one said and the other replied, is the only intelligible and helpful evidence.
The judgment and order should be affirmed, with costs.
Present — Hirschberg, P. J., Woodward, Jenks, Thomas and Carr," JJ.
■ Judgment and older unanimously affirmed, with costs.