UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 31, 1943
BUFFALO BARGE TOWING CORPORATION ET AL.
Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
Rule 38(3) of this court requires an appellee, if he "desires other or further relief than that granted by the decree," to file an assignment of errors within ten days after the notice of appeal has been filed. The Bouchard Company did not file such an assignment of errors and is in default. However, that is only a default in time, against which it is always possible for a court to relieve when justice demands. Rule 40 of this court also provides that "on sufficient cause shown" it may allow an appellee to "interpose a new defense": applications for that relief must be made within fifteen days after the filing of the record.The Bouchard Company failed to "interpose" the defense of the statute of limitations in this court; but again, that was a default only in time. Although the Rules of Civil Procedure have not yet been extended to the admiralty, the policy laid down in Rule 6(b) (2), 28 U.S.C.A. following section 723c, is in accordance with the earlier practice of the courts of equity, and the rule of admiralty is no different. Justice clearly demands that the Bouchard Company, which was at best only secondarily liable, should not be compelled to pay a judgment from which the Buffalo Company has been excused. The decree of this court will therfore dismiss the libel as against both respondents.
Petition for rehearing denied.
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