The New York herald., 1875-12-03
THE COURTS.
The Bleecker Street Railroad
Foreclosure.
Interesting Decisions by the Supreme
Court, General Term.
Rapid Transit-Appointment OF
Commissioners.


pany has through his attorneys, Messrs. Sullivan
Kobbe and Fowler commenced suit to foreclose tne
first mortgage ON the road motion was 70 nave
been heard in Supreme Court, Chambers, yesterday
for the appolntment OF receiver OF the road bat
gument was deferred until Wednesday next. Mr.. Sis
tare in his complaint, after alleging the char
Iering and organization Of the company, proceeds
state that the I'd day OF January, 1885, the
company executed tho mortgage sought to be
foreclosed to Benedict Lewis, Jr covering all the fran
chses privileges, benefits and rights connected with
the road and belonging TO the company, including
the railroad constructed cars horses and
all appurlenances and other property owned
acquired by the company; that said
mortgage executed to the payment OF bonds
OF the company to the amount OF to be issued
from time to time rs the exigeuccs OF the company
might require such bonds being payable the lst o.
January $780, with interest at the rate OF seven per
cent per annum, payable semi-annualiy on tho nrst
days of January and July OF each year that in case OF
default in the payment Of interest as provided the es
tate OF the mortgages then became absolute; that the
company made default the payment OF interest upon
Baid bonds the lst day of July 1875, and Is still in
default in respect to the same that plaintiff Is the
and holder of such bonds with the coupons at
tached and that payment has been duly de-
manded OF the SAID company by the pre-
Bentation OF the coupons due July !, 1875. at.
tached to the said bonds all OF which was refused,
and of the interest any of the said series OF
bonds has been paid, but, on the contrary the com
ment OF interest will become due the lst day OF
January 1876 and the company will make default the
payment OF the same that there is outstanding OF
buch bonds about 700 of the or 81 900 each and
default has been made in the interest due them all
On the 18th OF April, 1873 the company executed o
second mortgage to Francis A. Palmer covering all the
property and rights included in the first mortgage, to
secure the payment OF second series OF bonds to be
Issued and covering property to be thereafter acquired
that but very few of such bonds issued,
and the remainder thereof have been de-
posted In bank under some arrangement or un-
nerstanoihg unknown TO the nrst mortgage
bondholders; that such second mortgage made sub
bequent to that sought TO be iorecosed and the
mortgage had full knowledge at the time of the exccu
lion OF the second mortgage Of the existence OF the
nrst; that the company IS IN debt for the rent OF
premises leased from the city for stables &c, is in
debed for unpaid taxes TO the year 1874, inclusive In
the sum of $4,000 and OF $59S Al, with interest
thereon to the lst day or February, 1875 amounting
TO S4 l04 81 and interest thereon to the lst day OF
August 1875 amounting to ST. 356, and assessments to
the amount Of So 33I 49, and with interest thereon
August 1885, amounting in the aggregate to the
Of $81 256 y, and likewise to various parties the
sum oil about $40 600 ior wages due TO its employees
and for various other existing legitimate debts al or
which amounts in the aggregate to $l25,42 81;
hat default has been made in the pay
IN the payment of interest already due, and, Judging
rom the facts will be made in the payment of interest
next falling due The complaint further alleges that,
on the death OF MT Lewis, the trustee, John NJ. Har
lowe appointed his successor, but the latter
ected TO perform his duty In the trust In not
demanding and securing additional conveyance for the
further assurance and protection OF the cesuis qee
frust, and by reason thereof vexatous questions
have arisen in regard TO the operation OF the said st
mortgage and 1t has been given by Jacob Sharpe
that this hrst mortgage is not first lien the prop
erty acquired by the company the I'd Of January
A. ID. 1865; that in August, 1875, Harlowe commenced
suit for the foreclosure OF this nrst
mortgage in which he seeks to have himself ap-
pointed receiver; that the original appointment
OF Harowe, trustee was Irregular and he is there
fore without authority to bring such action that the
foreclosure commenced by Harowe has been in
definitely postponed to the prejudice of plaintiff and
others similarly situated that it also provided in
lhe event OF default in the payment OF taxes
ments by the company the trustee might enter
possession Of the property, and such default having
been made the estate of the trustee representing the
bondholders has become absolute law; that the
appointment OF receiver pending this action capable
Of managing the road will be for the advantage OF all
lhe parties Interested that the bonds rapidly de-
preciatng value and he believes, unless this
mortgage Is speedily forecosed the property
and franchises Will speedily depreciate in value;
that the road Is entirely controlled and subverted
BY faction of its managers who manage it rather in
The interest of railway combination in which the
profit results such managers through other compa-
nies rather than through the defendants company,
plaintiff viii on the trial Hereafter more precisely
prove; that under the present management of the
said company large sums have been wrongfuy and
lawfully expended in legisation-to wit, as plaintiff Is
Informed and believes and charges to be true, about
$50 0o0-and plaintiff charges that the manage OF
said company has been wastefu, prodga and extrava
giant in the extreme, as must appear upon
accounting; that Harowe, failure TO have him
self appointed receiver, withdrew his motion a
ceivershp, and the result is that the managers of the
road still continue to control and subvert Its affairs
The complaint concludes by demanding the removal OF
Harowc trustee OF the first mortgage; the appoint
ment Of n receiver; that Harlowe be enjoned from
prosecuting his action OF foreclosure; that
be taken of the outstanding obligations OF the COM
pany; the relative rights OF the bondhoders and
owners common stock adjusted by the Court and
that such other further relief to the Court may
seem Just shall be granted TO plaintiff
THE COMPTROLLER AS A LESSEE.
The case of The People ex rel the New York Dis
pensary, respondent, Andrew H. Green, Comptroller
appellant, and in the OF The People ex rel Mary
A. Schanck, executrx, respondent against the same
appellant which appeals were made from orders
granting wrts OF peremptory mandamus In the FIRST
mentioned the Court at special term sustained tho
temurrer ofthc reator to the return OF the Comptro
er and ordered judgment thereon in favor the
nor In the second the Court quashed the return OF
the Comptroller as immateral and irrelevant and or
dered pcremptory writ OF mandamus Both the cases
presented substantially the question. The point
made behalf of the Comptroller that the duty
pf executing leases ordered by the Common Council
did not appertain To his Office and that be
could not be compelled by mandamus
execute such leases, Notwithstanding the Common
Council by resolution had requested and ham
30 TO do. Judge Davis who rendered the decision
sitting in General Term thought that this question did
10 have been considered by the Court below
and only indirectly to have been presented in one case
but 1t which must be considered by the Gen.
sral Term. because, la determining whether the writ
Of tnandamus shall be issued by the Court against n
public officer IL was primarily important tha, n shoutd
appear that the duty aud the power to perform IL be-
ong his otfico and were incumbent him as such
officer The powers and duties OF the Comptroller
defined by article Of the charter and bo
ound in sections 20 TO 35 both inclusive. dilgeut
search Of these sections failed TO disclose any provision
language which imposed upon the Comptroller tho
duty o execute these leases when directed TO do by
the Common Council The duty imposed upon the
Clerk oil the Common Council OF signing all
leases. and 1t apparent that the Comptroller
II he executed the leases in question could make
perfect instrument under the law because by statute
the signature Of the CLERK and the corporate seal
which by law in his custody, must stil be ali xed
TO the instrument All tho embarrassmcnls in tho
disappear IN view oi the power given TO the clerk
sign Rl leases and the authority which the Common
Council possesses him and the seal in hts
custody to direct its use designating that officer as
the proper for tho execution Of leasos d.
rected by that body. The Court felt constrained 10
hold that under the charter OF 1873 It part OF
the duty OF the Comptroller to execute leases be.
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