On a motion for re-hearing, the following decision was made:
BENEDICT, District Judge.This case comes before the court upon a motion for a re-hearing. The affidavit upon which the motion is founded, states two grounds. One ground is that upon the trial it was ruled that one of the questions passed on in the opinion already delivered, viz.: the question whether it was negligence on the part of the Stevens to leave the Annex dock after she had been injured by the collision in question, was a question to be left to be determined on the reference. This ground is untenable. The minutes show no such ruling. On the contrary, evidence was given upon that-question, not only by the libellant, but also by the claimant. Moreover, the question was argued at the hearing, by the libel-lant as well as by the claimant.
The other ground is that in another action tried since the trial of this action, the libel-lant’s witnesses have given evidence bearing upon this question inconsistent with, if not contradictory of, what they testified in this cause.
If there were no right of appeal with liberty to introduce new evidence, it would no doubt be proper to permit a re-hearing of the cause, provided the fact be as claimed that the testimony given by these witnesses on the subsequent case alluded to, is such as to contradict their testimony given in this case and compel a different result. But there being a right of appeal with liberty to introduce new evidence, I do not feel bound to reopen the case for the purpose of introducing new evidence here — and this the more because at the trial the claimant’s proctor rejected the proposition of the other side to try the two cases referred to together, and allow all evidence given in the one to be read in the other so far as material. Motion denied.