Pennsylvania Steel Co. v. New York City Ry. Co.

231 F. 442 | 2d Cir. | 1916

PER CURIAM.

It will only be necessary to state the particulars in which we think the decree of the court below should be modified.

[ 1 ] The claim for rent due by the Metropolitan Company, October 13, 1907, belonged to' the Third Avenue Company and not to its stockholders. The lease of the Metropolitan Company to the New York City Company which we had under consideration in 198 Fed. 761, 117 C. C. A. 503, contained an express guaranty by the City Company to the stockholders of the Metropolitan Company for which reason we held that the stockholders had a right of action. The lease under consideration, however, contains no such guaranty to the stockholders of the Third Avenue Company and though it does give the Metropolitan Company a right to make such a guaranty in the future the company has never done so.

[2] The Third Avenue Company’s consolidated mortgage under which Frederick W. Whitridge was appointed receiver expressly covers rents growing out of property now owned or hereafter acquired by the company, but the claim for rent which fell due October 13, 1907, before he took possession as receiver does not go to him as against the general creditors of the company. Gilman v. Ill. & Miss. Tel. Co., 91 U. S. 603, 23 L. Ed. 405; American Bridge Co. v. Heidelbach, 94 U. S. 798, 24 L. Ed. 144; N. Y. Security & Trust Co. v. Saratoga Gas Co., 159 N. Y. 137, 53 N. E. 758, 45 L. R. A. 132. It was covered by the claim filed by the Third Avenue Company by leave of the court February 1, 1908, and goes to the general creditors of that company. It was not transferred by the Third Avenue Company’s assignment of February 1, 1912, which covered only claims within the Third Avenue Company’s consolidated mortgage.

[3] On the other hand the claim for rent due the Third Avenue Company January 13, 1908, falling due one day after Mr. Whitridge took possession as receiver, did go to him, subject to the deduction of anything paid for the use and occupation of the premises, and by his assignment of February 1, 1912, went to Douglas Robinson as surviving receiver of the mortgaged property of the Metropolitan Company, and belongs to him.

[4] The claim for interest on the consolidated mortgage 4 per cent, bonds, January 1, 1907-January 12, 1908, must be allowed in full to Mr. Robinson as surviving receiver of the mortgaged property of the Metropolitan Company without the deduction of the $200,000 paid under the agreement of December 29, 1911, to Mr. Whitridge as mortgage receiver.

The decree may be modified in.accordance with this opinion, and, as so modified, is affirmed.