
    Buchholz-Hill Transportation Company, Respondent, F. Baxter, Appellant.
    Second Department,
    December 30, 1910.
    Evidence — judgment — State court cannot alter Federal decree — evidence — telephone conversation.
    The owner of a tug which was injured by a collision with a sunken barge libeled the barge in the United States District Court for negligent failure to mark the . wreck. The owners of the barge by petition brought in B., alleging that lie had agreed with them to perform that duty. The court gave judgment for the libellants and dismissed the petition bringing in B. but not upon the merits, it being held that his liability must he determined in a separate action. Upon an appeal to the Circuit Court of Appeals the case was heard anew and the court, as appeared by its opinion, considered that, oil the merits, B. had not made the alleged agreement. The mandate, entered on the motion of the libellants, however, affirmed the decree of the District Court without prejudice to the bringing of a new action by the owners of the barge against B. for the relief asked in their petition. No new opinion was written, but a decree obedient to the mandate was entered in thp District Court. Later the owners of the barge brought action against B. in the Supreme Court of New York for breach of the alleged contract.
    
      Held, that the court could not change the decree of the Federal court to accord with the opinion handed down;
    That evidence offered by the defendant as to the' issues litigated in the Circuit Court, showing that it had at first decided in his favor on the merits, for the purpose of showing aliunde that the Federal decree was an estoppel, was, inadmissible.
    A party to a telephone conversation should he permitted to testify, not only to what he heard, but also to what he said.
    Appeal by the defendant, John F. Baxter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of March, 1910, upon the verdict of a jury for $5,579.52, rendered by direction of the court, certain questions having theretofore been submitted to the jury, and also from an order entered in said clerk’s office on the 7th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Norman B. Beecher [Charles O. Burlingham and Sidney P. Henshaw with him on the brief], for the appellant.
    
      Pierre M. Brown, for the respondent. *
   Thomas, J.:

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.

Pending the issuance of the mandate on the decision, the court upon plaintiff’s motion and hearing thereof adjudged “ that the decree of said District Court be and it hereby is affirmed, * * * but without prejudice to the bringing of a new action by appellant against the said John F. Baxter for the relief prayed for in its petition against said Baxter,” and the mandate accorded with such order. Thereupon a decree obedient to the mandate was entered in the District Court. The hearing in the appellate court was a trial de novo ; it in the first instance decided the issue on the merits and in favor of the present defendant; its judgment should have followed its opinion, provided it continued to express its decision; it was moved to a reconsideration, and without further opinion adjudged that the decree below should be affirmed, which was a decree dismissing, but not on the merits, the petition, and that the affirmance should not prejudice the plaintiff’s right to bring a new action on the merits, or, in other words, that it should not operate as an estoppel.

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, for the reason that all he wished, to introduce in that behalf is not effective for that purpose. ' The fact of what was litigated is not in doubt, nor is it questionable that the United States Circuit Court of Appeals primarily decided the merits full in Baxter’s favor, but what -it did afterwards shows that it either changed its conclusion and decision or ordered a decree to be entered thereon that, did not adjudge as it had found. If it changed its view, this court cannot assail its judgment embodying its decision thereon. ■ If it made the same decision, but did not make a decree to fit it, this court cannot make over its decree to- carry out its decision. But whether or not it changed its decision'can only be known from its decree, mandate and the decree below, and they show that they dismissed the action not on the merits. The .question whether Baxter agreed to buoy the wreck in fulfillment of the statute in connection with his contract to raise it was a question of fact, and it is considered that the verdict is not against the weight of evidence in the sense that justifies this court in granting a new trial.

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.  