The Cygnet 66 F. 349

COXE, District Judge.

This cause, for a comparatively unimportant one, abounds in unusual complications. The libelant has failed to prove the cause of action and the claimant has not proved a defense. This may seem paradoxical, but it is, nevertheless, true that the proof fails to sustain the cause of action alleged in the libel and does establish the fact that the claimant has no title to the libeled vessel. The Cygnet is a Canadian pleasure yacht. In the spring of 1894 she was lying at the port of Buffalo and was owned by Buffalo parties. The libelant alleges that he was employed by one Ewing to act as sailing master of the yacht at $50 per month. The proof shows that Ewing was neither owner of the yacht nor agent for the owners to make such a bargain. The testimony, documentary and oral, proves that at all the times in controversy the owners were Louis E. Levi and Alfred Sehoelkopf. There is nothing to contradict this positive proof but rumor, hearsay and unfounded declarations. At the time of the alleged em*350ployment of tbe libelant as sailing master one of tbe owners of tbe yacbt was in Europe and tbe other, from personal considerations, had no inclination to use her. In short, neither owner bad any intention of sailing the Cygnet during tbe season of 1894; both were anxious to sell her. She bad never bad a sailing master, at least while Levi and Schoelkopf owned her, and she bad absolutely no occasion for one in tbe spring and summer of 1894. Tbe oaths of Ewing and the two owners that tbe libelant was never employed as sailing master are thus corroborated by tbe fact that there was no occasion for such employment. It is not pretended that either of tbe owners employed tbe libelant, and, even if Ewing made tbe alleged contract, it is clear that be bad no authority to make it and could not bind tbe yacbt. On tbe other band it is shown that Thomas McG-raw, of Toronto, who claims to be “the true and bona fide owner of said yacbt,” has no interest in her whatever; at least tbe proofs fail to disclose any interest. His only claim of title is as lessor under a 99 years’ lease; tbe lessees, Levi and Schoelkopf, having paid full value for tbe yacbt and having accepted this lease in lieu of a bill of sale. It is hardly necessary to consider tbe nature of McGraw’s interest in tbe Cygnet in August, 1992. Tbe court will take judicial knowledge of tbe fact that long before the lease falls in tbe yacbt will have fallen apart and the claimant will have taken bis last boat ride with Charon as “sailing master.” Although tbe testimony does not establish tbe cause of action as alleged it does show that tbe owners authorized tbe employment of the libelant at $2 per day to clean the yacbt and put her in order so that she could- be shown to intending purchasers and sold to advantage. Tbe libelant says that it took him about 10 days to clean tbe yacbt, but it is thought that the testimony of Ewing warrants tbe conclusion that libelant was employed in tbe above capacity and as keeper for at least 2 weeks. He was paid $6. This would leave a balance due him of |22. Tbe evidence of all interested parties is before tbe court, and it is thought that tbe most equitable disposition that can be made of the controversy is to give tbe libelant a decree for this amount, interest and costs. Should further proceedings be contemplated tbe owners should have leave to intervene and answer and tbe libelant should be permitted to .amend if be is so advised.