158 F. 460 | U.S. Circuit Court for the District of Southern New York | 1908
At the hearing of December 19th on petition of receivers for instructions as to what they should do in regard to interest about to fall due on Third Avenue railroad bonds, and in such briefs as have been since submitted, the general consensus of opinion seemed to be that counsel representing the various interests desired more time to examine into the facts before making any suggestions. No one suggested any way to overcome the practical difficulty indicated in receiver's petition, viz., the lack of funds to pay the $875,000 of interest on such bonds, which fell due January 1, 1908, or any substantial part thereof. The receivers, therefore, did not pay such interest.
Now comes the Third Avenue Railroad Company upon a notice of motion for December 31st, adjourned to January 3d, and asks that the receivers be directed to pay such interest. Upon this hearing it was suggested that it be sent to a master to take proofs upon which the existing situation can be more fully set forth, and it appears that
It is proper and desirable, however, that the court should call attention to the great importance of expedition on the part of all concerned. At the very outset of this receivership, as soon as it learned through receivers that very heavy payments under this Third Avenue lease were to fall due in the near future, the court in a memorandum filed early in October intimated that the question of their payment would soon have to be taken up. It was supposed that all different interests would move promptly to secure representation through committees and counsel, and the accountants employed by the receivers were instructed to give their first attention to the subject of Third Avenue operation. They did so, and after several weeks of investigation prepared an elaborate report, which was the basis of receivers’ application (December 13th) for instructions. The receivers also were instructed to (and did) accord right of way to any accountants who might apply to examine the records on behalf of Third Avenue interests. Such an examination was made on behalf of Third Avenue bondholders, and it is understood that a report has been made by these accountants; but, of course, that has not been laid before receivers or the court. No accountant applied on behalf of stockholders. Such reports as these, made after careful investigation by wholly disinterested and competent experts, are, in the nature of things, more persuasive than the suggestions and assertions of persons who have not made a like investigation. It is by such investigations and reports that a court obtains the information on which instructions to receivers are given. Nevertheless they may be incorrect in some respects, either as to facts reported, or as to facts overlooked, or deductions drawn; and for that reason a hearing before the master seems to be the only way by which the court can be more fully advised in advance of final instructions. But the importance of prompt action on the part of every one interested in presenting facts before the master is surely manifest. The receivers will afford every facility to such accountant as the petitioner may send to examine the records bearing oh Third Avenue operation; and they will forthwith put on file in the clerk’s office a copy of the report of the accountants, Price Waterhouse & Co., as to that road.
Counsel for Third Avenue Railroad may take an order for appointment of special master to take testimony and report as above indicated. Order to be settled, on two days’ notice, any day after 2 p. m.
