
    BUSH TERMINAL CO. v. DAVIS, Agent, et al.
    (District Court, S. D. New York.
    November 29, 1926.)
    1. Admiralty <@=>94 — Libel of review may be entertained, in absence of other remedy, where party without fault has been deprived of his day in court.
    While a bill or libel of review is not a common procedure in admiralty, it may be resorted to in unusual cases, where a party without fault on his part has been deprived of his day in court.
    2. Admiralty <@=>34 — Libel of review held not barred by limitation which would have barred original suit (Transportation Act 1920, § 206 [a], being Comp. St. § 10071 Vice).
    In a suit in admiralty under transportation Act 1920, § 206 (a), being Comp. St. § 1007114 cc, against the federal agent for damages arising out of the government operation of a railroad system, respondent served a copy of his answer, with notice that the original had been filed, but through inadvertence it was not filed. Libelant’s proctors noticed the case for trial, but, as no answer was on file, it was not placed on the trial calendar, but with many others on a special calendar of cases not at issue, and was dismissed by the court for want of prosecution. Libelant’s proctors did not know of the dismissal until after the term and time for appeal had passed. Held, that the court would entertain a libel of review, that it was in effect a new suit, and, while involving the same matters as the original suit, it was not one arising out of the operation of the railroad, and was not barred by the two-year limitation of the statute.
    In Admiralty. Suit by the Bush Terminal Company against James C. Davis, as Agent, etc., and Andrew C. Mellon, Ms successor in office. On motion by respondent to dismiss libel of review filed by libélant.
    Deified.
    
      Macklin, Brown, Lenahan & Speer, o£ New York City (Horace L. Cheyney, of New York City, of counsel), for libelant.
    Burlingham, Veeder, Masten & Fearey, of New York City, for respondents.
   WINSLOW, District Judge.

This is a motion made by tbe respondent, appearing specially by counsel and solely for tbe purposes of the motion. Tbe action is a “libel of review.” Tbe motion is made to dismiss tbe libel of review, on tbe ground that it is barred by statutory limitation.

It appears that heretofore, and in or about October, 1921, tbe libelant filed its libel in admiralty against James C. Davis, as Agent, etc., to recover tbe sum of $6,200 damages alleged to have been caused by a collision between a steam tug operated by Davis, as Agent, etc., and libelant’s float No. 32.

Davis, as Agent and Director General, etc., appeared by bis attorneys, and on January 10, 1922, served a copy of bis answer; said service of answer being accompanied by a notice that tbe original answer bad been duly filed in tbe office of the clerk of this court. Tbe notice of filing of tbe original with tbe clerk was an error, undoubtedly honestly made. Tbe answer was not filed in accordance with tbe notice, and never has been filed. Thereafter the libelant in tbe admiralty action duly served a notice of trial on proctors for respondent. But the cause was. never put on tbe admiralty trial calendar, because tbe clerk did not find any answer on file, and, according to tbe records of this court, tbe ease was not at issue.

On May 21, 1925, pursuant to order of this court, a special admiralty calendar was called of cases not at issue, and in wbieb no proceedings bad been taken for over one year. This calendar contained upwards of 500 cas> es. Owing to tbe fact that there was no answer on file in tbe case, it appeared on this special calendar. Tbe case was called in due season, and dismissed on tbe court’s own motion. On May 25,1925, an order was entered, dismissing tbe cause for want of prosecution, without prejudice and without costs.

In or about January, 1926, respondent’s proctors notified libelant’s proctors, verbally, of tbe order of dismissal, which verbal notice conveyed tbe first knowledge to libelant’3 proctors of tbe dismissal of the ease. Tbe time to appeal to tbe Circuit Court of Appeals bad expired. Application was made to a judge of this court to open and set aside tbe order of dismissal; but tbe court held that, as tbe term during wbieb tbe decree bad been entered bad then expired, tbe court was without power to grant relief. This latter order not being appealable, tbe libelant herein brings this libel of review.

Tbe original action was brought under the so-called Transportation Act of 1920 — Comp. St. § 10071^oe, subds. (a), (b). It is apparent that tbe original action, although instituted within tbe two-year period, would now be barred, if suit were now brought. Tbe respondent contends that this bill of review is practically tbe same as tbe original admiralty action, and that section of tbe Transportation Act applies:

“Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use or operation by tbe President of tbe railroad or system of transportation of any carrier (under the provisions of tbe Federal Control Act, or of tbe Act of August 29, 1916) of such character as prior to federal control could have been brought against such carrier, may, after tbe termination of federal control, be brought against an agent designated by tbe President for such purpose, wbieb agent shall be designated by tbe President within thirty days after tbe passage of this Act. Such actions, suits, or proceedings may, within tbe periods of limitation now'prescribed by state or federal statutes, but not later than two years from tbe date of tbe passage of this act, be brought in any court which but for federal control would have bad jurisdiction of tbe cause of action bad it arisen against such carrier; except that actions to enforce awards made by tbe commission under tbe provisions of subdivision (e) against the agent so designated by tbe President may be brought within one year after tbe date of tbe commission’s award.” Section 10071%ce, subd. (a), U. S. Comp. St. 1925 Supp.

Tbe libelant was not negligent in not discovering bis cause ampng tbe 500 on tbe special calendar for’'dismissal owing to lack of prosecution. There was no reason for him to scrutinize this calendar for this ease. Tbe trouble results from tbe failure of tbe respondent to. file bis answer, coupled with tbe service of a notice incorrectly stating that it was filed. Tbe court does not doubt that tbe service of tbe notice of filing was due to tbe inadvertence or negligence of some employee.

Tbe bill of review was unknown to tbe common law, and has been apparently borrowed from courts of equity. While it is not a common procedure, it has been resorted to on occasion, where the processes of tbe court have been abused, or where a tortious purpose has been, effected and no other remedy exists. While, naturally, the review arises out of and involves the same matters as were in controversy in the original suit, it is in effect a new action. Although this is a “proceeding in admiralty,” it does not arise out of the “operation” of a railroad by the President. See 34 Cyc. p. 1696, and cases cited.

If this be true, the bill of review is not barred by the two-year statute of limitation. Such authorities as I am able to find agree that it should be resorted to only in most unusual eases, and is not permitted, except in the absence of other remedy. While there has been no fraud in this case, as we use that term, the circumstances do not impute to the libelant any act or omission whatever on his part which in good conscience should deprive him of his day in court. The remedy has been discussed at length by Judge Thomas in The Columbia (D. C.) 100 F. 890, citing many cases. While that case depended upon the allegation of fraud, which is absent in the present case, I agree with Judge Thomas, paraphrasing his language, that it would be an intolerable rule that disabled this court, upon proper suggestion made to it, from disturbing a decree which had deprived a litigant, without any fault of his own, from his day in court. No usual limit of time should embarrass the court in suitably correcting a decree.

For the reasons stated, the motion to dismiss the libel will be denied. The respondent is directed to answer the libel of review.  