
    The Oceanic Steam Navigation Co. v. Compania Trans-atlantica Espanola, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    Appeal—Res ad judicata.
    Where the court of appeals reverses a judgment dismissing the complaint, and orders new a trial, it must he deemed to have decided that the evidence was sufficient to require the judgment of the jury; and if the evidence on the second trial is the same and the questions are properly submitted, a verdict for plaintiff will not be disturbed.
    Appeal from a judgment, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    This action was brought to recover the amount of a judgment rendered against plaintiff for personal, injuries to John Cleary, which were caused by the negligence of defendant, and for the expenses of defending that suit.
    On the first trial the complaint was dismissed. The court of appeals reversed the judgment and ordered a new trial.
    In the year 1886 the Oceanic Steam Navigation Company, ■commonly known as the White Star Steamship Company, was the grantee from the city of New York of the right to use Pier 44, N. R., and collect wharfage thereon. It agreed, as part of the consideration of the lease, to erect and maintain a shed on the pier.
    December 17,1886, the defendant, which will hereafter be called the Spanish Ctimpany, obtained from the White Star Company the right to the “entire use” of this pier, from the 20th day of December, 1886, until the opening of navigation on the Hudson river in the following year. This agreement is contained in letters between the White Star Company’s agent in New York, R J. Cortis, and the Spanish Company’s then agents in said city, Messrs. Munoz & Espriella, which are set forth in full in defendant’s answer, and are admitted. The Spanish Company went into the possession of the pier under the said agreement, and continued in possession from the close of navigation in 1886, down to the middle of February, 1887. During their occupancy of the pier, and between the 14th and 19th of January, the Spanish Company authorized the Mobile Steamship Company to use the pier, but this use was not exclusive nor did it differ in any way from the use by different vessels of a public pier.
    There was a shed on this pier, with doors in the side. On the 17th day of January, 1887, one John Cleary, while in the discharge of his duties as koister, was struck by one of these doors, which had been left unfastened and leaning against the side of the shed, and his right leg was broken. April 9, Cleary brought an action against the White Star Company in the circuit court of the United States for the southern district of New York to recover damages for said injury. The action was tried before Judge Wheeler and a jury, June 7, 1888. Cleary recovered a judgment against the White Star Company, for $2,084.05 damages and costs, which judgment it was compelled to pay, and did pay to Cleary. It moved for a new trial of this action and the motion was denied. The opinion of Judges Lacombe and Wheeler, denying this motion, will be found in 40 Fed. Rep., 908. The White Star Company having been compelled to pay this judgment, brought the present action against the Spanish Company, seeking to be indemnified for the loss it had suffered, by being compelled to pay John Cleary damages for injuries which had been received by him while the Spanish Company, and* not the White Star Company, was in possession of the pier, and which it is alleged were caused by the negligence of the Spanish Company.
    
      Stearns & Curtis ( Cephas Brainerd, of counsel), for app’lt; Everett P. Wheeler, for resp’t.
   Freedman, J.

If I were not concluded by the decision made in this case by the court of appeals, second division, as reported in 134 N. Y., 461; 47 St. Rep., 742. I would still be of the opinion expressed by me in 58 N. Y. Supr. Ct., 425; 84 St. Rep., 153, that the evidence is insufficient to establish negligence in the defendant now before the court.

But upon this branch of the case the court of appeals said;. “ The fact, which was quite clearly shown, that the door and fastening were in good repair when the defendant assigned to the Spanish-American Company the right to collect wharfage and cranage at the pier, did not relieve the defendant from its duty to keep the wharf in safe condition. 40 Fed. Rep., 908.”

This was all that was said as to the ground upon which the defendant’s liability is to be based. Taking then the rule as thus-laid down, the defendant clearly was not negligent in the performance of its duty, unless the wharf or pier subsequently became unsafe and the defendant had either actual or constructive notice thereof. In my judgment the evidence is insufficient to fasten any such notice upon the defendant, and consequently, if I were at liberty to do so, I would hold that, it" is insufficient to-establish negligence on the part of the defendant now sought to-be charged.

But the evidence is the same now as it was before, and the court of appeals having reversed the judgment in favor of the defendant and ordered a new trial, must be deemed to have decided that after all the evidence was sufficient to require the judgment of the jury upon it. The trial judge evidently so construed the decision, and the issues having thereupon been submitted to the jury in obedience to it and determined by the jury in favor of the plaintiff, I fail to perceive how the defendant can have any relief against the result in this court. If the case was one for the jury, it was properly submitted, and in such case the record presents no exception which calls for reversal.

The judgment and order must be affirmed, with costs.

Mo Adam, J., concurs.  