215 F. 218 | E.D.N.Y | 1914
Final hearing has been had upon certain pleas interposed in the answer of the defendant, and which, if any one be sustained, will make unnecessary determination of the
The first plea has to do with the question of. parties. It was previously held, in the case of Lawrence v. Southern Pacific Co. (C. C.) 180 Fed. 822, that necessary parties were absent, and appeal from the judgment of dismissal therein entered was dismissed in the Supreme Court of the United States. Bogert, as Executor of Lawrence, v. Southern Pacific Co., 228 U. S. 137, 33 Sup. Ct. 497, 57 L. Ed. 768.
It is not necessary to consider whether, if the testator had attempted to bring some of the previous actions and had thus elected to present his claim for remedy in that form, he would now be held to have-waived his rights and to be estopped from urging the same alleged rights in this present form of action. Klipstein & Co. v. Grant, 141 Fed. 72, 72 C. C. A. 511; In re Jacob Berry, 174 Fed. 409, 98 C. C. A. 360; Bobbs-Merrill Co. v. Strauss, 147 Fed. 15, 77 C. C. A. 607,. 15 L. R. A. (N. S.) 766; Iversen v. Minnesota Mutual Life Ins. Co.. (C. C.) 137 Fed. 268; Bracken v. Atlantic Trust Co., 167 N. Y. 510, 60 N. E. 772, 82 Am. St. Rep. 731.
It is urged by the defendant- that its records have been lost, witnesses have disappeared, that the lapse of time has rendered it impossible to fairly try the case, and that this has occurred with the knowl
The various suits which have been instituted and the decisions rendered thereon need not be discussed, but should be enumerated as follows: Carey v. H. & T. C. Ry. Co. (C. C.) 45 Fed. 438 (1891); Id. (C. C.) 52 Fed. 671 (1892); stockholders held not entitled to decree enjoining carrying out of plan of reorganization, or to have foreclosure set aside as fraudulent. Carey v. H. & T. C. Ry. Co., 150 U. S. 170, 14 Sup. Ct. 63, 37 L. Ed. 1041 (1893); appeal to Supreme Court from decree of Circuit Court dismissed. Carey v. H. & T. C. Ry. Co., 9 C. C. A. 687, 13 U. S. App. 729 (1894); decree of Circuit Court affirmed by Circuit Court of Appeals for the Fifth Circuit. Carey v. H. & T. C. Ry. Co., 161 U. S. 115, 16 Sup. Ct 537, 40 L. Ed. 638 (1896); appeal to Supreme Court from decree of Circuit Court of Appeals dismissed. Gernsheim v. Olcott, 7 N. Y. Supp. 872 (1889)
The matter has always been disposed of upon questions of pleading, or with respect to the validity of the foreclosure action. The plaintiff seems to have at last brought the matter up in such a way that the issue can be heard. 'If any of the pleas in bar should be sufficient, the rights of the defendant to renew those pleas, at the close of the tes
Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 55 Hun, 606.
Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 56 Hun, 644.