American Brake Shoe & Foundry Co. v. New York Rys. Co.

277 F. 261, 1921 U.S. Dist. LEXIS 900
District Court, S.D. New York·Decided November 21, 1921·Published·Cited by 15 cases

Opinion

MAYER, Circuit Judge.

Guaranty Company, as trustee of the first mortgage of Railways Company, is plaintiff in the mortgage foreclosure suit, No. E 16-163.

It asks for a decree which, inter alia, shall determine: (1) The property covered by the lien of the mortgage; and (2) the amount of the obligation secured thereby. Farmers’ Company, as trustee under the adjustment mortgage, opposes the granting of any decree at this time. The further progress of the litigation will be later considered; but, whether or not the time has come for a final decree, it is important, from time to time, to dispose of as many controverted questions as possible, and thus to clear up, so far as practicable, the uncertainties as to respective legal rights in a very complicated situation.

1. The Property Covered by the Lien of the First Mortgage and of the Supplement Thereto.—The mortgage is elaborately drawn, and, as will appear infra, was part of the machinery by which a reorganization of the old Metropolitan system was effectuated. After the recitals the mortgage grants to the mortgagee:

“All and singular tlie property described as follows: All and singular tbe railways, rolling stock, equipment, property, assets, rights, franchises, consents, legislative and municipal grants, leases, leasehold interests and estates, contracts and privileges, choses In action and all other property, real and personal, of every kind, which were sold under the general decree or the refunding decree as aforesaid, and also all other property, real and personal, of every kind owned by the company on the date of the execution hereof or which may be hereafter acquired by it or on its behalf, subject, however, to the exceptions in this indenture hereinafter stated and made-
“The property so described and covered by the lien of this mortgage shall include particularly, without prejudice to the generality of the language hereinbefore or hereinafter contained, the following lots and parcels.”

Then, under headings from “Lot 1” to “Lot 12,” inclusive, are set forth descriptions of specific railroads, rights, leases, real estate franchises, chattels, stocks, bonds, and buildings. “Lot 13” reads as follows :

“Parcel 1. All and singular the railroads, lands, buildings, structures, fixtures, privileges, franchises, rights of way, trackage rights, contracts, consents, leaseholds, easements, and other rights and interests owned by the Metropolitan Street Railway Company on March 21, 1902; also all and singular the tracks, side traeks or sidings, switches, rails, bridges, fences, [264]*264buildings, depots, station houses, power houses, car houses, machine shops, repair shops, and other shops and all other buildings, improvements, erections, and structures, and all dynamos, belting, engines, boilers, regulators, meters, poles, trolleys, conduits, feeders, cables, wires, switchboards, lamps, and machinery for producing, generating, and distributing electricity or power; arid also all and singular the rolling stock, equipment, motors, engines, tenders, carriages, cars, trucks, horses, harness, tools, implements, furniture, fixtures, machinery, materials, coal, .wood, oil, fuel and other supplies; and also all maps, drawings, profiles, licenses, records, deeds, contracts, and agreements, patents, arid patented inventions and processes owned on March 21, 1902, by Metropolitan Street Railway Company; and also all improvements and additions made on March 21, 1902, or at any time prior to December 29, 1911, upon and' to any and all of said railroads or property, real and personal, and any and all equipment therefor and renewals or replacements of the same or of any part thereof or of the appurtenances, and also all and every other railroad which the Metropolitan Street Railway Company acquired subsequent to March 21, 1902, or constructed by means of the proceeds of any of the bonds secured by the refunding mortgage, and all power houses, real estate, equipment, and other property, real or personal, appurtenant thereto; also all property acquired by Metropolitan Street Railway Company subsequent to March 21, 1902, in connection with the premises and property described in the granting clauses of the refunding mortgage, and all renewals and replacements of such property, and all additions, switches, side tracks, betterments, and improvements thereto not subsequently released from the lien of the refunding mortgage, and not hereinbefore described and included.”

Under “Miscellaneous,” the mortgage provides as follows:

“Also all improvements, additions, or betterments which may hereafter be made or acquired to or for the railroads and other properties now owned or hereafter acquired or constructed by the company.
“Also all and every franchise, right, privilege, consent, and easement of whatsoever kind or nature now owned, possessed, enjoyed, or exercised by the company, or which may hereafter be owned, possessed, enjoyed, exercised, or acquired by it under its certificate of incorporation or by virtue of any act of the Legislature of the state of New York, or of any contract or agreement between it and the authorities vested by law with power to consent; to the construction, maintenance, and operation of railroads upon, along, across, and over public streets, avenues, and highways in the state of New York, or in any political subdivision thereof, or by virtue of any agreement or lease between it and any other railroad corporation, or under or by virtue of any authority whatsoever.
“Also all other railroads, railroad routes, extensions, and branches thereof now owned, maintained, or operated, or that may hereafter be owned, maintained, operated, or acquired, by the company, together with all the tracks, rails, special work, conduits, poles, stands, switches, turnouts, turntables, electrical switch material, and other electrical equipment, wires, cables, and feeders, channel rails, fire protection apparatus, conductors, lighting and heating fixtures and tools, engineering equipment and tools, plumbing equipment and tools, transfer tables and elevators, connected with or appurtenant to the said railroads, now owned, constructed, or operated, or that may hereafter be owned, constructed or operated by the said company.
“Also all rolling stock, cars, express ears, engines, boilers, generators, snow ploughs, tools, machinery, motors, power houses, substations, car houses, and railroad equipment and plant now owned or possessed or enjoyed by the company,'or which may hereafter be owned, possessed, or enjoyed or acquired by it.
“Also all shares of stock, bonds, notes, and other evidences of indebtedness which may be hereafter acquired by or on behalf of the company, in whole or in part, with bonds or the proceeds of bonds authorized to be issued under article second of this indenture.
[265]*265“Also all real estate, together with the' buildings and improvements thereon, and appurtenances thereto, now owned, possessed, or enjoyed by the company, or which may hereafter be owned, possessed, enjoyed, or acquired by it.
“Also all leasehold interests and trackage and traffic contracts now owned, possessed, or enjoyed by the company, or which may hereafter be owned, possessed, enjoyed, or acquired by it.

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American Brake Shoe & Foundry Co. v. New York Rys. Co., 277 F. 261, 1921 U.S. Dist. LEXIS 900 (S.D.N.Y. 1921).

277 F. 261 (American Brake Shoe & Foundry Co. v. New York Rys. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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