Whitney v. Stevens

16 How. Pr. 369

• Court: New York Supreme Court
• Decided: January 15, 1858
• Status: Published

Opinion

Clerke, Justice.

"Without considering on this occasion the power or duty of the court in relation to the subjects discussed on this motion, or whether any proportion of the bondholders under these mortgages, without the actual concurrence of the whole, saying nothing of the decided opposition of many of them, can maintain an action of this description, it seems to me, that every relief and remedy to which the parties are entitled, can be obtained in the actions commenced for the foreclosure of the mortgages, The court, before whom these actions have been brought, can mostappropriately determine what property is. covered by these securities, what the respective interests of the bondholders under each mortgage are, what discretion it possesses to regulate the sale of the road, and if possessing any effectual for the purpose, whether it would be a proper exercise of that discretion, to order the sale of it as an entirety ?

. To determine these questions in this action, would be taking them from the tribunal that has now legitimate possession of them, and would be an indirect method of reviewing the decisions of a co-ordinate branch of this court, which we have no right to do directly.

. Mptions for an injunction and a receiver, are therefore der cided, with $10 costs.