The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-03-22
FuSillade of Discussions Sweeping Away
CObWebS of Doubt.
OPINIONS OF JUDGES BRADY AND DANIELS.
judicial Review of the Conflicting
Points of Controversy.


Five decisions In the Eric suits were handed down
yesterday by Judges Brady and Daniels. before whom
several motions were respectively made and argued
at great length time ago. In the OF Zegol
an infant, residing in Erie county, the Court grants
the motion for leave unless the plaintiffs
shall be within ten days taken out of the pro-
ceednRs to which he was made party, leaving him
1t liberty to his rights In court and takes the
position that his interests impered by fore
closure. The main suit OF james McHenry,
John II. Brown and Charles +. Evans,
claiming the right to be brought into tho
of the Farmers Loan and Trust Company as party
defendants, they being rst mortgage bondhoders, Is
decided aversely to the McHenry party. Judge Dan.
iels, who writes the opiuion holds that the parties
fully protected under tho foreclosure sale as first
mortgage boudhoders and denies the prayer OF their
petition, In the suit brought by the parties in
Monroe county the motion made Deha OF the
Erie Railway Company to continue the injunction
against the prosecution OF the action Is denied by
Judge Brady. In the case OF Albert De Beiz
Noritz Sewn Borchard and Jules Levita, who ella
foreign holders oil bonds to be made parties the
suit and to 60 and investigate the acounts the
prayer Of the petitioners is granted subject proof
that they the owners OF boLds they say they
possessed OF, that statement being dispute. In
the matter OF the petition OF Isaac s. Fowler, stock
holder who applied for leave TO examine the books,
and of the receiver, motion is
granted under RESTRICTIONS. There Is given below
moro detailed abstract OF these various decisions
FARMERS COMPANY FORECLOSURE
FIRST and most important OF tho decisions IS that
given by Judge Daniels on the application Of James
McHcnry, John H. Brown and Charles f. Evans, who
sought be made parties to the foreclosure suit Of
the Farmers Loan and Trust Company tor the pur-
pose Directing to tho su1lciency OF the judgment
obtained IN such suit, aud to the accounts OF the
suit OF the Farmers Loan and Trust Company against
The Erie Railway Company and others in which this
application is made originally begun for the pur
pose of iorecl0sing both the first and second
solidated mortgages Before 1t was carried to judy
mcnt the suit far changed as TO Call only for
the foreclosure Of the second consolidated mortgage
The petitioners here are holders Of certain Of the first
consolidated mortgage bonds and claim that as such
they injured In their properly rights by the
exclusion Of first consolidated mortgage from the
suit These petitioners began another suit on their
behalf for the foreclosure OF the hrst consolidated
mortgage ON the ground That the Trust Company had
neglected to secure It's foreclosure Tor the
bsnent Of the bondEolders, and had identified them
selves with foreclosure under the second consol
dated mortgage ana plan Vi reorganization, which
these petitioners aege nmical 10 the interests OF
the first consolidated mortgage bOndh0dera They
were restrained In that suit and consequently con
tend that protection and indemnity against
what they assert " be improper charges, illegal al
lowanccs and the irregular and informal Judgment,
required that they should be brought the suit
parties defendant Judge Daniels further says that
even conceding their statements to be entirely right
to tho facts, II does not follow that the motion
should allowed 10 succeed because It has been
shown that the suiciency OF ther securities would
be any respect impaired or endangered If they
not allowed the matters to when their
allegations have been directed. They must maintain
applied solely ON their own bonds and
the rights appertaintng under tho mortgage
xven no mauusr no Proper nss
been presented IN support OF their application. The
petitioners among other things, claim that the pr O.
posed plan OF reconstruction Will have the eff ct
postponng their right to payments, which have al
ready accrued Judge Daniels says That The parties
that plan OF reconstruction Oind only themselves
cannot bind the persons who are
complaining because these latter have
sssen,cd to the plan their debts are amply secured
and beyond the control ot those whose Ia
the LIQUIDATION Of the present application and even
sheir riguts Ia danger the proper remedy would
be independent action IN tnelr own behalf. In
conclusion he says the petitioners would have right
TO bs made parties here provided the rights which
thef claim 10 posseSs could not be secured in any
othsr way; bu. susb rights can bs amply secured ia
monroe county, even though thoy ara temporarily
joined In that suit now
TIE MONROE COUNTY suiT.
The second op. mon importance ~ hat written by
Judge Brady. He says that oil the OBJECTS Of
pa,ntis IN the suit Of Mchenry and others against
the plaintiffs herein and others was to remove the
plaiDtGs from their position as trustees under the
mortgages mentioned in the complaint. anu the as
sauit made, OF whcn that was expected TO be the
result. was predicated on allegations OF mis-
conduct and Encouragement and neglect, all
operating TO the prejudice OF the estate
TO which tho trust rested. The action brought by
them Is ponding IN this ooart, and when this
one WAS commenced, aud snsy had therefore naugu.
rated . proceeding which struck at the very IIe Vi
i've plaintiffs rs trustees, shd which, u successful,
must cod H. The iattor coulA that notion have
dicated themselves, and doubtless placed the
controversy before The Court winch was material TO
be considered, and may DO that this action except
The actions OF McHcniy others, was
substantially unnecessary Indeed It is
that II is one chiefly Tor injunction because that
It's main Object. The prayer oi the compliant fur.
nishcs Justification Tor this view, inasmucn AS 1t
prays lhut INJURY be directed TO ascertain whether
the plaintiffs McHenry aud Others are owners Of the
bonus claimed Ny hem also as 10 the bonds out
ing under tho mortgages not embraced In the
pan oil reorganization to VINO aud what owners
OF such bonds dsapprovo OF tho plan and agreement
oil REORGANIZATION; aud II II shall appear upon such
Inquiry that there are any such bono
holders VINO are entitled to demand that
tne paIntlu shall proceed with the OF
mortgage for the benefit such bondhoIders who
do require and demand that The paintin shall so
proceed that the plaintiff may DO at liberty 10 pro-
coed with foreclosure thereof In this action; and,
lurther that McHenry and others may be perma-
pentiy restrained IRON prosecuting the actions
whole OF the prayer 1t cannot be said that
Chs action IL cross-actioD. The relations cx-
isting between the plaintiffs aud the plaintiffs
McHenry ana others in the other action, 80 far as DIS
closed by the complaint herein. are not such AS TO
form the subject oil nn independent action against inc
latter personally. The paiOiIfs herein urge no per
sona clam or demand against them or either OF them.
Inc gravemen or theory OF the complaint herein IS
that they Are resisting improperly and unJustly IA
scheme, plan or agreement OF reorganization 10 winch
large majority o the bona anu stockho ders assent
and which would, II carried out, be Tor the best inter
est oi ALL II is said, indeed, that the OF lions
In advocacy OF the place Of should
the consideration of the Lourt aud prevent the
continuance oil the action commenced by McHenry
ana Others, but this answer tho propos
that this department should not interfere with aud
stay the proceedings Ia an action pending
An another department and AIMED the
very existence oil The plaintiffs for any
purpose connected wiih active control
OF the Erie Railway Company or It's property. Ii this
proceeding designed TO accomplish the dissoiu-
lion OF an Injunction Obtained BY Mchenry ana his
opalutis III Their action restraining the plauiins
ana others rom competing the plans oil reorpanizi-
lion, or interfering with them IN any way, the
pf their CLAIM or status IN court would be
proper SUBJECT Tor consideration; but 1t
Is not, ana The merits do not, therefore,
form legitimate issue on TINS motion. The
other plaintiffs nave right to their day Ia
their action ana whether the plaintiffs herein have
any standing on account OF the charges made