168
REPORTER,
yol. 43.
York court of appeals, (Arer v. Hotchkiss, 97 N. Y. 395, 402,) "is a device to promote justice. We shall never handle it unwisely if that purpose controls the effort, and the resultant equity is kept in view." It seems to, me that the equity resulting from a recognitiop of the right of subrogation in this case, and the inequity resulting from its rejection, show that I shall not handle the doctrine unwisely iLL apply it in lavor of thelibp.lants. The exception is overruled, and the case will proceed to a hearing on the merits.
THE, SEMINOLE. t LYNCH
v.
THE SEMINOLE.
(DIstrict Oourt, E.D. New York. March 15, 18110.) A.DMIRALTY-I'IBEL FOR POSSESSION.
, The yacht S., belonging to one 'Blunt, and then lying at Brunswick, Ga., was , purchs.sed by Leonard for $1,000, of which $150 was in cash, and $850 in notes. A , bill of sale was delivered' to Leonard, which contained no copy of the certificate of 'enrollment, anJ also an order on the persoll in charge of the boat to deliver her to Leonard or order. Leonard, the same day, sold the yacht to Lynch, this libelant, for $700, of which $110 was paid on the spot. Instead cit & bill of sale, tbe order for delivery of the yacht was given to libelant, which ,he turned over to a person whom be employed to bring the yacht to New York. Leonard afterwards' obtained this order from the employe without the knowledge of libelant, and'delivered it to one Fal'nham, who started with the yacht for New York. thereafter demanded of Leonard the bill of sale, which was refused. After the vessel arrived in New YOl'k, Leonard delivered a bill of sale to Waterhouse, his brother-in-law, for an exprllssed considel'ation of certain moneys claimed ,to have been advanced on hel'. On libel ,for possession, the various parties above , named appearing in the action, it wash-eld that the title to the boat was in Lynch, and possession of hel' would be awarded tQ him on his payment into court of the ba,ll!once of the p1ll'chase money, $590, less his taxed costs, which sum should be paid over to Waterhouse:
In Admiralty. Libel for possession. . On July 5, 1889. William Leonard purchased the yacht Seminole, then lying at Brunswick, Ga., from Edmul1.d Blunt, for $1,000; He paid Blunt $150 in cash, and gave his notes, indorsed, for the balance, $850. He received from Blunt a bill of sale of the yacht, which con· tained no copy of the certificate ofenrollment. He also received a written order on the person in charge of her to deliver her "to bearer, William Leonard, or order." Leonard, later on the same day, sold the yacht to the libelant, George M. Lynch, for $700. Lynch paid $110 in cash, and agreed to pay the balance on receipt of the bill of sale; Leonard sta:tingthat he had not yet received a bill of sale from Blunt. Leonard, however, gave the order for the delivery of the yacht to Lynch, and the latter delivered it to a person employed by him to bring the yacht from Brunswick to New York. Leonard, subsequently, on the same day, obtained the order from this person, without the knowledge or con· ,1,Reported by Edward G. Ben'ldict, Esq., of the New bar.,
THE
169
sent of Lynch, and delivered it to one Farnham, who started on the same evening for Brunswick. On learning these facts, Lynch made a forlllal tender of the balance of the purchase money to Leonard, and demanded a bill of sale, which was refused. Farnham arrived at New York with the yacht on September 21, 1889. On September 23, 1889, I,eonard made and delivered a bill of sale of the yacht to William S. Waterhouse, his brother-in-law, for an expressed consideration of $1,200, whichWaterhouse claimed to have advanced on her. This bill of sale contained a copy of an old certificate of enrollment in the name of one Douglas. No new enrollment was had by either Leonard, Lynch, or'Vaterhouse; and neither of the bills of sale was recorded. On January 17, 1890. the libelant, on learning the whereabouts of the yacht, filed this possessory libel. A claim and answer were filed by Waterhouse, claiming title by bill ofsale from Leonard. Leonard answered, denying the sale to Lynch, and alleging the aale to Waterhouse. Blunt intervened by petition, claiming the right to rescind the sale to Leonard, and that no title had passell from him to Leonard. He alleged that, at the time of his sale to Leonard, the latter represented himself and his indorser as responsible men and owners of certain specified real estate of great value; and that 'he ·only discovered the falsity of these statements after judgments had bfleD ,obtained' against Leonard on the promissory notes, and executionsagainst his property had been returned unsatisfied. Albert A. Wray, (Joseph F. MosMl', of counsel,) for libelant, cited The Fannie, 8 Ben. 429; Bankv. Smith, 7 Wall. 646; D'Wolfv. HarriJJ, 4Ma-son, 515; The Lodemia, Crabbe, 271; The Active, Olcott, 286; The Amelie; 6 Wall. 18; Bank v. Jones, 4 N. Y. 497; Oity Bankv. Rome, W. & O. R. Co., 41 N. Y. 136; Merchants' Bank v. Union R. & T. Co" 69 N.Y, 373. H. E. Talmadge, (Charles E. Le Barbier, of counsel,) for Waterhouse and Leonard . Alexander Cameron, for Edmund Blunt. BENEDlGT, J. Let a decree be entered in this case directing the sharpie Seminole to. be delivered by the marshal into the possession of the ant, George M. Lynch, upon the payment by the libelant, Lynch, into the amollnt of the taxed the registry of the court of the sum of 3590, costs of the libelant Lynch in this action; and further directing that the sum so. paid into the regi!ltry, after deducting said costs, be paid over to the claimant, Waterhouse, or his proctor; and further directing that the claim of Edmund ,Blunt to the possession of the said sharpie be dismissed, without costs.
170
:n:DERAL
vol. 43. BALL. t
TH;E A. M. r
24,
i8llO.).
WlTaouTNoTWE. , :J;t otthe owed bya tug. to ber tow to cast ot! the to,,:-line withoilt'gl'Vin!t'reasonable notme of her·intention so to do,' and reasonable time for the .tow· t4> tali:e measures tolns,ure hI»: owli sa,fety. " 2.,·SAME""7NEGLIlllllNCE.., , ",; ',' < " . Wh.erethe'tnasterof a tu!t llllgaged to towaschooiler, and did tow her for a short. ,. period> and tllen. finding tnatthererhad been a mistake in the bargain with the </llthe WW-l,ine, lVhllreUlIQ,IJ in,apite of all her elforts, '. , was carried by the 'wind aiid. tide again/lt the docks, it was held that the tug was I lia'ble'for damage., .' ,' " . . I\,
L TUG A:.'(:P·.
i
;l
In Aq.miralty.. Action for' damage "to a tbwin.' being cast adrift by her tag.. ' ,;:; Robert D·.,Benedict, for libelants. ·;,Af4r;a'ltder k·,ABh, for claimants· . Thieis an 'action .tOl'ecover damages of the tug A. M. Ball for setting theschoonelldEllen iEliza adrift in the Ettstriver. ' The schooner was.sailingup .' the East river" to .College Point,Jheavily loaded w,ithbriek.';' ;When somewhere' below the bridge, she was hailed' by the tug A. M.,Ball to know if she wanted a. tow. The captain of tlie told the master of the tug that the soh6oner was bound,to Point, and offered to give him four dollars to'tow her to that plaoe. The mastel of' the', tug .acoepted the offer, and. taking the schooner's line, to tow the schooner. It appear.s that the master of the tug" through carelessness, had supposed that the master of the schooner. had said she was bound to Hunter's Point; Jam}:,' on his deck-handcall'ing his attention to his mistake, he at once inquired of the master of the schooner whetherh'e wasMund to Hunter's Point or College Point" and on being informed !thatshe was bound to College Point, told the master of the <8ChOOtl-el that·he could not. tow "hijD to College ,Point for four Shortly afterwards· the schoonet'snine ,was cast off.from the tug, and the tug went 0ft'in pursuit of other business. At the time when the schooner's line was castoff by the tug,she was above the bridge, and about off J ack,son street. Her sails were down,:and a strong breeze was'blowing off the eNeWi York shore. The schooner ..tonce.endeavored to get u 1> ·her. sails; but, while getting up the sails, she was carried' by the wind and tide across the river; and thus, before she could gather way, she brought up on the Brooklyn side, whereby she was considerably damaged. The evidence satisfies me that the master of the tug did not take hold of the schooner with the intention to tow her to College Point, but under the mistaken idea that the schooner was bound to Hunter's Point. This mistake was the fault of the master of the tug; for no mistake was made 'Reported by Edward G. Benedict, ESQ., of the New York bar.
