THE GYPSUM KING

THE GYPSUM KING. (Circuit Court of Appeals, Second Circuit. August 27, 1909.) Appeal from the District Court of the United States for the Southern District of New York. Motion to take new proofs on appeal. Before WARD, Circuit Judge (in vacation). [MAJORITY — WARD, Circuit Judge.] WARD, Circuit Judge. Under the former practice of this court the parties might take new proofs at will, though the depositions of witnesses who had deliberately not been examined, or who might have been called at the trial, might be suppressed on motion. Singlehurst v. La Compagnie Genérale Transatlantique, 50 Fed. 104, 1 C. C. A. 487; The Venezuela, 52 Fed. 873, 3 C. C. A. 319. The present rules 1 and 7 of this court in admiralty changed the practice, permitting new proofs to be taken only by leave of the court. The appellant seeks to examine two sea-faring witnesses in this court. Its secretary swears “that at the time of'the trial in the District Court I made strenuous efforts” to secure the presence of these witnesses, but they were then not in port and so could not be produced. That they were competent and material witnesses evidently was known, and also that their occupation put them in the class of going witnesses. What these efforts were is not stated. It is not shown that any reasonable steps were taken before the trial, by subpoena or otherwise. The motion is denied.