New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1878-03-22
POINTS OF THE DECISIONS.

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stakeholder
POINTS OF THE DECISIONS.
The first of the five Erie motions which vey.
decided yesterday, that Of the Farmers Loan and
Trust Company against James McIenry, John H. Brow,
and Charles Frederic Evans to restrain the prosecute,
Of the suit brought by them In Monroe County holder
OF bonds under the first consolidated mortgage tn
complaint the Monroe County suit alleged that Tia
trust company after beginning suit to f0recOse botA
the first and second consolidated mortgages had sbap
doned the foreclosure Of the first mortgage, in the inter-
est of those bOndhOdcrs who accepted the recons,u
ton scheme and continued the suit only the second
mortgage. The plaintiffs in the Monroe County suit d.
PENDANTS in regard this motion denounced the recon-
sructon scheme unjust to those who did not acceds
to it, and oppressive to those who did, aud asked The
removal OF the trust company trustee, tho appoint
ment OF a new and the foreclosure of the fra
consolidated mortgage The suit in which this motion
was made was brought by the trust company to stay
perpetually the Monroe County suit The motion for tho
Injunction was argued before Judge Brady who has SUR
stantally decided that Mr.. acHenrys suit In Monroe
County cannot be stayed in this action,
lie gives a very careful and long opinion, 10 which
passing by the questions to the relations OF Mr. Me-
Henry and his associates the Erie Railway Cempapy
as matters to be decided on the formal trial Of the
on on evidence and not adayits he holds that tho
McHenry action differs entirely from the other actions
pending 1t in large part to remove the trust company
from It's position as trustee charges OF misconduct
and neglect The charges II true, sufficient to Jus.
y the relief demanded and the plaintiffs in that suit
have right to test their truth falsity trial The
defendant in the Monroe County suit would have an
opportunity to present defence ana Its suit here was
therefore, unnece ssary.
The suit of the trust company. Judge Brady continues
essentially an injunction suit IL Is not cross action
No personal claim is made on Mr. McIienry and his
socIates The union OF millions In advocacy OF the
scheme TO which Mr.. McHenry and Others are opposed.
is no answer the proposition that the courts OF this
department should interfere with and stay the pro-
ceedngs in an action pending in another department
and aimed the very existence OF the plaintiff Tor
purpose connected with the active control q
this were motion to discharge an injunction
against the trust company the position Of Mr. MeHenr
might properly be considered but his merits are nor
VOWED IN question of his right 10 prosecute bis action
II enough that in his action he presents matters that
s sI s % cenaed nS for sanf to enoe $
supposed rgnts in court of Justice II be Is mistaken
in court trustee who is impeached Tor neglect Of
duty should not be allowed TO prevent the pioseeutonot
an action by becoming plaintiff against Its assaian the
very question being whether has not lost all rights 70
be trustee. ,.., ALL, ,...,
Brady that the action Of McHenry and Others was be-
gun first, but that is one of the incidents OF property
held in common by numerous persons having smkr
rights majority OF owners IN interest even IN cases
where that proper element OF consideration IN ne
aud one owner having a comparatively small share may
demand and must receive the fui consideration OF us
rights This cannot well be Galnsaid and must Dc car
law"
DENYING A MOTION TO DE ADMITTED.
The plaintiffs in the Monroe County suit, James Nc
Henry, John IT, Brown and Charles +. Evanssalso made
motion to be admitted defendants in the main fore
closure suit of the Farmers Loan and Trust Company
against the Erie Railway Company Their avowed OBJ
ject was enable them to object TO the sufeency
The foreclosure decree and 10 contest the accounts
Receiver Jewet This motion was argued before judge
Daniels The grounds Of This motion were suns anuay
the same those o. the Monroe County sui thOusha
tits proceeding the plaintiffs enlarged on alleged ms
MANAGEMENT by the receiver ana Ia alleged Heloioio
their injury the reconstruction scheme Judge Dthles
denies their motion because Is not SHOWN Una. lo
suiiciency OF their security Will be ID any respect im.
paired or endangered II they are not allowed To assert
ihcr claims the foreclosure suit AZ to TIE reeonsiu
lions cheue pOstpOning some pay ments, Aal
only affect tie parties to II and cannot bind the peuioa
and even II their rights are III danger ncir proper
remedy would he an independent action III tHct "nu
behalf They would have right 10 be made partlts 70
the foreclosure suit IL their rights could not be secured
in any other way, but such rights can DE amply secuu
intne actOn which they have Drought III ohIoe' ouhV'
BoNpHoIDERs ALLOWED TO COME N.
Albert DeBetz and Mortz Levin Borehord. of Antwerp
and Jules Leyita, Paris petioned holders OF bonds
under the second consolidated mort gage to the amount
of $3.50 600 in defendants in the main fore
closure action. to attach the receivers accounts and 70
aside the foreclosure decree lhS motion was Lea
before judge Daniels IL was opposed ON the gionha
that the petitioners either held none vi the bonds wch
they hold that II they did hold any they
h. Id them solely rs Dir. Mcilenry's agents
Judge Daniels declares that, AS the evidence appears
the reconstruction scheme seems intended, "a ceHHa
extent rather for the protection OF those asserting ton
than for others interested In the assets OF the com
pauy Each owner Of bonds has the right TO eNcrcle
his own Judgment what he thinks best, anu If the
convection OF the minority differs materially fOu
that majority to what is eXpedient that ~ 10
reason for depriyng the minority Of its rights. In no
view which can be taken OF the II has been pre-
behalf of The applicants, would the Court %
justified in denying the PRAYER OF their petition tLe
charges well founded, IL is duty 10 the panh
trustee the receiver, and TO the majority vho De
sire the success OF the reconstruction scheme that they
should be relieved from the aspersions which these
charges pnbody As bondhuiers these persons are en-
titled To know what charges are 10 be made against ne
property and that only be done by allowing heu 70
become parties Ia permit them Ia examine lho
the charges they make. He grants the prayer SUBJECT
their proving preliminariy that they own the pouus
which they claim To own.
THE ZAGGEL AND FOWLER PROCEEDINGS.
william Zaggel, an infant Judgment creditor OF Inc
Erie Railway Company, in Buffalo. was made defS
dant in the main foreclosure suit. When the suit ss
changed from sut to foreclose both consolidated mos
cages To SHIT TO orecosc only the second, netaffbs
nor his guardian ad a received notice OF the charge
moved set aside the decree OF foreclosure lOi
irreguarity, the counsel who had represented MI
Henry in other suits aiding his counsel on the mouS s
Judge Daniels decided that the decree must pe SET
and Zaggel allowed TO put IN an answer. unless s"V
ten days his name be stricken from the Complain. LII
the latter alternative Is accepted Zagge Will ~ A.,
city to enforce his Judgment against tue Ere h"""
property, after IL is sold under foreclosure an.
Isaac =. Fowler, as stakeholder claimed tns. an
last election OF Erie directors was carried O Ira M
lent proxies and demanded permission to eANnss "a
stock books and proxies TO ascertain the truh ~
election. Judge Brady holds that such pefns'snss
should be granted but confines the examination " n.
books, etc. in this district, and TO such as VIII NV
terfere with the business OF the corporation