liams tow and the Brooklyn shore, which would have interfered with that maneuver. Before the collision occurred, the McWilliams tug continued to round to starboard to pass up the river, showed her green light and towing lights to those on the No. 8, and after the collision passed up with her tow on the starboard side of the No. 8, and under the stern of the No. 8, landing her tow in Newtown creek.

The McWilliams and the No. 8 displayed the proper lights. The carfloats in tow of the No. 8 displayed lights at the places required by the rules. The four barges in tow of the McWilliams each displayed one white light on a staff 15 feet above the cabin at the stern, but the outside barges did not display the other lights required by the rules.

There was evidence that lights of the character of those displayed on the barges could be seen for five miles, and the lights on the car floats in tow of the No. 8 and on the barges in tow of the McWilliams were lanterns which could probably be seen for the same distance. The failure to maintain a proper lookout is a fault. The Nevada, 106 U. S. 154, 1 S. Ct. 234, 27 L. Ed. 149; The Transfer No. 15, 243 F. 174, 156 C. C. A. 40; D., L. & W. R. Co. v. Central R. of New Jersey, 238 F. 560, 562, 151 C. C. A. 496; The Tugboat No. 6, 170 F. 306, 95 C. C. A. 502.

There was no lookout on the bow of or on the cars on either car float in tow of the No. 8, and if the master and deckhand of the No. 8, who also was the lookout, and who were in the pilot house, could not see any lights on the barges in tow of the McWilliams, as they testified, then it must have been because they could not see with the tow made up as it was, with loaded cars on each float, and in that event it was not possible for those in the pilot house of the No. 8 to maintain the lookout that was required. The Buenos Aires (C. C. A.) 5 F.(2d) 425, 431. A proper lookout was not maintained on the No. 8, or the lights on the barges in tow of the McWilliams, which were good, bright lights, would have been seen by the lookout on the No. 8 and the collision prevented. D., L. & W. R. Co. v. Central R. of New Jersey, supra.

The two-whistle signal given by the McWilliams tug was a proper signal, if it be considered that the situation was a passing one, as the McWilliams did desire to pass to starboard of the No. 8 and swing her tow, so as to pass up between Blackwell's Island and the New York shore, and she had crossed the bow of the No. 8 before giving the signal,

and the green light only and not the red light of the No. 8 was visible to those on the McWilliams at that time.

This signal was also a proper signal, if the witnesses for the No. 8 testified truly, because they said that the McWilliams appeared to be ahead of them, and that the No. 8 was pursuing substantially the same course as the McWilliams tug and overtaking her, and if the No. 8, as the overtaking vessel, desired to pass the McWilliams tug, then the No. 8 should, by proper signal, under article 18, rule VIII, Pilot Rules, have reached an agreement with the McWilliams tug. If the No. 8 was an overtaking vessel, the McWilliams was under no obligation to inaugurate signals; but the McWilliams, by the twowhistle signal, indicated her desire that the No. 8 pass on her port side, which would have been the side toward the Brooklyn shore, and as an overtaking vessel it was the duty of the No. 8 to keep out of the way.

The passing signal of two whistles, blown by the McWilliams, was not answered by the No. 8, nor did the No. 8 navigate in pursuance of that signal, and this constituted a fault on her part. The No. 8 was also at fault for failure to stop and reverse when the first alarm was sounded by the McWilliams, and in waiting to stop and reverse until just before the collision.

The advocate for the No. 8 contends that the No. 8 saw the McWilliams tug long be fore the McWilliams tug saw her, and this may be true; but it clearly appears that the No. 8 did not sound an alarm until after the two-whistle signal and two alarms were sounded by the McWilliams. If the contention of the advocate for the No. 8 be accepted, and it be held that the master of the No. 8 saw the McWilliams before the No. 8 started to angle over toward the New York shore, then it would seem to me that the No. 8, after her master had seen the McWilliams, must have headed toward the McWilliams tow, which he should have seen, and which he would have cleared, if he had continued down reasonably close to the Brooklyn shore.

This is supported by the testimony of the master of the No. 8, who says he did not see the tow of the McWilliams until he was where it appeared as a shadow, and that, if the tow had not been there, he would have passed the McWilliams, which had turned and shown her green light, starboard to starboard. There was but little choice presented to the McWilliams, as she was in a position where she was compelled to go on and make her turn properly, or the tide would set her tow on Matamora Rock.

The No. 8, on the contrary, before she began to angle over to New York, and at the time when the two-whistle signal was sounded by the McWilliams, was in a position where she could have continued down along the Brooklyn shore, and have cleared the McWilliams and her tow; but, when she commenced to angle to New York, she headed for the tow of the McWilliams, and the failure of the No. 8 to sound any signal until just before she was right on top of the tow was a fault.

The No. 8 was not visible to the McWilliams when her master turned her over to the mate, and if the No. 8, as testified by her master, continued down about 400 feet off the Brooklyn shore, until between the ferry and Pidgeon street, there would have been no occasion for the McWilliams to watch the No. 8, as she would have safely passed between the McWilliams tow and Brooklyn, and it was because the No. 8 then started to angle toward the New York shore that the danger arose. The McWilliams saw the danger shortly thereafter, as she sounded her two-whistle signal when the No. 8 was off the sugar house just below Pidgeon street, and when her signal was not answered, and danger from the No. 8 was apparent, she sounded the alarm twice, and in starting out and continuing with her tow the McWilliams was without fault.

[2] While the No. 8 has been found at fault, there is still left for consideration her claim that the three outside barges did not carry the proper lights. The lights of the McWilliams complied with the rules; but notwithstanding that fact, if the lights of the barges did not comply, the responsibility for such failure would rest, not only on the barges, but on the McWilliams. The Sif (C. C. A.) 266 F. 166; The Eugene F. Moran (D. C.) 143 F. 187; Id., 154 F. 41, 83 C. C. A. 153; Id., 212 U. S. 466, 29 S. Ct. 339, 53 L. Ed. 600; The Nettie L. Tice (D. C.) 110 F. 461; The New York Central No. 22 (D. C.) 124 F. 750, affirmed 135 F. 1021, 68 C. C. A. 661; Foster v. Merchants' & Miners' Transportation Co. (D. C.) 134 F. 964; The Lizzie Crawford (D. C.) 170 F. 837; The Komuk (D. C.) 120 F. 841.

[3] The rules relating to the lights to be carried by the barges are found on page 25 of the Pilot Rules, and, so far as they are material, read as follows:

"Barges and canal boats, when towed at a hawser two or more abreast, when in one tier, shall carry a white light on the bow and a white light on the stern of each of the outside boats; when in more than one tier, each

of the outside boats shall carry a white light on its bow; and the outside boats in the last tier shall each carry, in addition, a white light on the outer afterpart of the stern.

"When barges or canal boats are massed in tiers and towed at a hawser, as is usual on the Hudson river, there shall be carried on the forward port side of the port boat of each tier a white light, and on the forward starboard side of the starboard boat in each tier a white light, and on the after port side of the port boat in the stern tier a white light, and on the after starboard side of the starboard boat in the stern tier a white light.

"The white bow lights for barges and canal boats referred to in the preceding rules shall be carried at least 10 feet and not more than 30 feet abaft the stem or extreme forward end of the vessel. On barges and canal boats required to carry a white bow light, the white light on bow and the white light on stern shall each be so placed above the hull or deck house as to show an unbroken light all around the horizon, and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least 5 miles."

The advocate for the Belle F. Mesick contends that the Pilot Rules above quoted, relating to lights required to be carried on canal boats and barges, are invalid. He presented an extended argument against the right of Congress to delegate to the supervising inspectors the power to make the Pilot Rules which are in evidence.

These rules have for many years been applied by the Supreme Court, Circuit Courts, and District Courts, and it is unnecessary to cite a large number of cases in support of this statement. I shall content myself with one, Belden v. Chase, 150 U. S. 674, 14 S. Ct. 264, 37 L. Ed. 1218, which seems to me to be a sufficient authority for sustaining the validity of the rules by this, a court of first instance. In that case Mr. Chief Justice Fuller, at page 698, 14 S. Ct. 271, writing for the court, said, with reference to the Pilot Rules adopted by the supervising inspectors: "The rules laid down by the latter as thus authorized have the force of statutory enactment." And again, at the same page: "They are not mere prudential regulations, but binding enactments, obligatory from the time that the necessity for precaution begins, and continuing so long as the means and opportunity to avoid the danger remains." [4] These rules were not complied with, but each barge did have a bright white light suspended on a staff on top of the cabin amid

ships at the stern, and these lights were visible, if not for five miles, as there was some evidence introduced to show that similar lights had been, certainly for a number of times the distance the No. 8 was distant from said barges when the McWilliams gave the two-whistle signal, and should have been visible to the master and lookout of the No. 8 at that time, because the barges Mesick and Blue Star were struck right in the vicinity of their lights. The white lights carried by the barges apparently were as visible and for as long a distance as those on the corners of the car floats in tow alongside the No. 8, which I held complied with the rules, as in both cases lanterns were used, I find no disobedience of the rules with reference to the brilliancy of the lights carried on the barges in tow of the No. 8, nor the distance they could be seen, but the violation of the rules, as I see it, consisted in failing to place lights at the points provided by the rules.

We thus have a violation of the rules, but it is impossible for me to believe that the lights on the barges could not have been seen at all times by those on the No. 8, from before the time when the two-whistle signal was given by the McWilliams, if a proper lookout had been maintained, especially because it appears that one of the floats in tow of the No. 8 must have struck right at that part of the McWilliams tow where the lights of the four barges were visible. The positive testimony as to the lights on the McWilliams and the barges in her tow outweighs the negative testimony of the master and lookout of the No. 8.

The advocate for the No. 8 cites as passing on the identical rule, and as authority that the violation of that rule constituted a fault on the part of the McWilliams and the outside boats of her tow, The Sif, supra; but it seems to me that the case at bar is clearly distinguishable from that case, because in the case at bar it can be said that proper lights, in proper places, on the outside barges of the McWilliams tow, could not have sooner advised the No. 8 of the real situation. The existence of the lights on the staffs at the stern of the cabins of each of the barges in tow of the McWilliams was shown by positive evidence, and the floatman on the No. 8 even admitted seeing the lights on two of the barges.

The master of the No. 8 testified that lights of the character of those shown to have been displayed on the barges could be seen for one-half to three-quarters of a mile, and there was no testimony given that the No. 8 was even one-half a mile distant when

she saw the bright lights described by her, and therefore the lights on the barges must have been visible to the master and lookout of the No. 8 if they were looking. The floats in tow of the No. 8 did not strike the bow of the Mesick, the starboard barge of the hawser tier, nor the aftermost boat of the tow, the Thomas Reddy, towing under the port boat of the hawser tier, and therefore the No. 8 was not deceived by the lack of lights; but the floats which she had in tow struck the starboard side at the stern of the Mesick, and the starboard side of the Blue Star at the stern, right where their lights were displayed, although under the rules the Blue Star was not required to carry lights.

The fact is that the floats in tow of the No. 8 crashed right in where the lights of the tow were displayed, and if the testimony of the master and deckhand lookout of the No. 8 that they saw no lights be true, then it is clear that lights at the bows and sterns of the outside barges, at the places provided by the rules, would not have given them any warning. This is further supported by the statement of the master of the No. 8, who said that he was familiar with the lights carried on the staffs at the stern of the cabins of the barges of the McWilliams tow, and had never seen, and did not look for or expect to see, tows lighted in any other manner.

This statement of the master of the No. 8, even if it showed that barges generally did not comply with the rules, would not be an answer to a violation of the rules; but it is important as showing that the presence of the lights at the points required by the rules would not have sooner advised the No. 8 of the real situation, if her master was unable to see the lights placed at the very place where he testified he expected to find them.

The failure to obey a pilot rule is not more than a failure to obey a statute, and the courts have held that a vessel that ignores the statute is not at fault, unless the position is a cause not a condition of the collision. The Clara, 55 F. 1021, 5 C. C. A. 390; The No. 1, 180 F. 969, 104 C. C. A. 125; The Morristown (C. C. A.) 278 F. 714. I therefore find that the failure to place lights on the barges in tow of the McWilliams was a condition and not a cause of the collision, and that the No. 8 was solely to blame.

A decree may be entered in the first above entitled suit in favor of the libelant and against the No. 8, with costs and the usual order of reference, and in favor of the steam tug Owen J. McWilliams and the

"Sec. 177. Purposes in View. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

Article VI-A of the Village Law (Consol. Laws, c. 64), entitled "Building Zones," as added by chapter 564 of the Laws of 1923, McKinney's Village Law, vol. 63, Supplement 1925, page 29.

The real purpose of this suit, and the sole basis of jurisdiction claimed to be in this court, is the claim that this ordinance of the board of trustees of said village, passed pursuant to their understanding of this granted power by the state of New York, as well as the statute, offends the Constitution of the United States, in that either the ordinance represents a misconception of this granted power, and is thus ultra vires, or, if such ordinance is within said grant of power, the said statute then so offends.

There is no diversity of citizenship. While the real estate is within the Eastern district, it is also within the state of New York, and governed by its laws, and the said state of New York has apparently provided ample statutory procedure to prevent injustice caused by arbitrary and unlawful ordinances (see Village Law, supra), including the opportunity to apply to a state court, and, of course, the door is open to apply from such state court to the Supreme Court of the United States, should a proper case be found by the latter court requiring such step.

At the outset, therefore, it appears that the plaintiff does not desire to test this village ordinance and state statute in the state courts, and, in case she is aggrieved, then apply to said federal court, but prefers, in the first instance, to commence her suit in a federal court. The excellent and thoughtful argument made by the counsel for plaintiff, as well as the equally able argument made by

The complaint would seem to set up allegations based on important facts, which, with the inferences therefrom, may become very material to a proper decision of the issues. The answer, by denials, etc., makes it equally important that these facts be decided at a trial. The plaintiff contends, however, that this answer is insufficient, to such an extent, as a matter of law, that it should be stricken out.

The undisputed facts are that in the months of April and June, 1925, plaintiff purchased some real estate in the village of Great Neck Estates suitable for residential purpose. One plot is said to have 22,000 square feet; the other plot 5,500 square feet. About a year later, to wit, March, 1926, the board of trustees and the clerk of the said village (the defendants, who appear to be named individually, but no point is made of that by defendants) passed a "zoning" ordinance, which plaintiff claims not only restricts or regulates the use to be made by her of this property, but constitutes a "taking" without due process of law.

The use of the words "square feet" would impress one, at first, in a large sense. If one realizes, however, that this may be a plot 220 feet front, along a street, with a depth of 100 feet, the size of the plot does not remain so impressive, especially in a village, and adjoining a golf links. The same reasoning applies to the smaller plot of 5,000 feet. I do not mean by this to even remotely intimate that the size of a plot has anything to do with the rights of its owner to object to an unlawful taking, by the village, of even a foot of her ground; but I do mean to indicate that very possibly the actual use by plaintiff, and the regulation thereof by the village, of such a sized plot, may on a trial be shown to be, not only an ordinary, but exceedingly sensible, one. Whether or not this is so would seem to be something that should be left to the trial.

[2] The fact is, and I mention it, not because