UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
December 4, 1944
AMERICAN SURETY CO.
Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
The judge found that the plaintiff's testimony was true, and that the suppositious Barbarovic never had any interest in the "Cincha"; but that the plaintiff had used Barbarovic's name only to give the ship a Yugoslavian registry. That testimony was perhaps somewhat suspicious, all things considered, and Judge Conger may have been wrong in accepting it; Barbarovic may some day turn up and claim the deposit. But he has made no claim to it as yet, nor has there developed the slightest reason to suspect that he ever will. What the defendant is really asking is that, because the plaintiff's original story was in part fabricated, if his testimony on the trial was true, it - the defendant - should be protected against the possibility that the original story was true, and the testimony, fabricated. On that chance it wishes to keep the money, until Barbarovic can be brought into the action. It was its privilege to join him, if it wished protection, though to do so it would have had to allege that he had made some "claim" to the money (Rule 22(1), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c), which it could not truthfully do. But it is an utterly untenable position to resist indefinitely repayment of a deposit to the actual with the because it is not as well satisfied with the truth of the depositor's evidence as was the judge who decided the issue. Judges are to decide when parties disagree, and the unsuccessful party must accept the risk that they may decide wrong.
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