11 N.Y.S. 268 | N.Y. Sup. Ct. | 1890
The disposition of this case requires us to determine—Hirst, what were the rights of the plaintiffs as bondholders of the Lebanon Springs and Harlem Extension Railroad Companies at the date of the commencement of the action of Marvin Sackett v. Russell C. Root and others? Second, was that action a representative one,.fairly conducted for the benefit of all the bondholders, or was it só vitiated by fraud as to entitle the plaintiffs to have the orders, and judgment therein, vacated and set aside as to them? A brief reference to the facts, most of which were found by the trial court, will, we think, make the proper answers to these questions obvious.
Marvin Sackett was the owner of $6,700 of the bonds of the Lebanon Springs Railroad Company. He brought an action in the supreme court, as he alleged in his complaint, “in behalf of himself and all others similarly situated, who hold any of the $2,000,000 of the' bonds of the Lebanon Springs Railroad Company, and who shall be entitled to avail themselves of the benefit of this suit. ” He alleged in his complaint the aforesaid sales to Hull and Lincoln, their mortgage of $5,000,000 to Park and Duncan, and their conveyance, subject to the mortgage, to the Hew York, Boston & Montreal Railroad Company, and alleged that Hull and Lincoln and Park and Duncan acted throughout for the benefit of the Lebanon Springs bondholders; that nothing had been or would be realized for the bondholders by a continuance of the existing situation; and he prayed that a receiver be appointed, and the railroad sold for their benefit. He made parties defendant, Russell C. Root, the Harlem Extension South Coal Transportation Company, the Hew York, Boston & Montreal Railroad Company, and Daniel Butterfield, its receiver, and no others. He alleged that they had no title or interest in the railroad valid against the bondholders, and prayed that it be so adjudged. The defendant John Van Valkenburgh was thereupon appointed receiver, no one opposing. The defendants the Hew York, Boston & Montreal Railroad Company and its receiver, Butterfield, made default. The defendants Root and the transportation company answered, putting in issue some of the allegations of the complaint respecting the rights of the bondholders, but asserting no right or title in themselves to the possession of the railroad. Seven bondholders, upon petitions representing their interest, moved the court to be made parties, but their motions were opposed by the plaintiff, and denied. The court, however, made an order “that the plaintiff’s attorneys be and they are hereby required to serve copies of all papers and notices of every kind, which shall be served herein, upon Mr. F. L. Westbrook of Kingston, Ulster county, H. Y., and he is hereby authorized and allowed to appear as counsel in behalf of said bondholders hereinbefore mentioned, upon all trials, hearings, and motions herein.” Park and Duncan also made application to-the court to be made parties, alleging their ownership of $800,000 of Lebanon
The importance of the finding that the Sackett action was a representative one has induced us to examine with care all the evidence bearing upon the. question. The conviction is forced upon our minds that the finding cannot be sustained, and that the finding requested by the plaintiffs, namely, “that said suit of Sackett v. Root was neither brought nor conducted for the purpose of realizing the property to the owners of the Lebanon Springs bonds,” ought to have been made. Assuming that Sackett and Tilden, his associate in bringing and conducting the action, contemplated the natural and probable consequences of their management of the action of Sackett v. Root, they cannot be acquitted of deliberate spoliation of the Lebanon Springs bondholders. What has already been said suggests the delicate and highly responsible trust which a representative plaintiff assumes in bringing such an action as Sackett brought. He impliedly guaranties that he will not allow his private interest to conflict with his discharge of duty. Here we find Sackett and Tilden obtaining from the fund, whicli it was their duty to protect for the bondholders, $27,764.21 upon their private claims, which, if valid, were behind the bonds. Ho suggestion of these claims was made in the complaint. Presumably the other bondholders, if they had not been kept out of court by the plaintiff’s intrusion as their self-elected representative,- would have opposed their priority. If aside from the bondholders there had been made parties defendant those who, as we shall hereafter show, were entitled to claim an interest in the action, they presumably would have opposed such priority. There were no parties to the action interested to oppose these claims. Sackett and Tilden represented both sides of -their own case. Hot content to leave out of the action those who would naturally oppose these claims, they successfully opposed and kept out such of them as tried to come in.. Under a pretense of protecting the common and general interests of the bondholders, Sackett and Tilden sacrificed them to their own interests. This was a fraud; and of itself is sufficient to establish the non-representative character of the action, and its misrepresentative character. Sackett’s omission to make the Union Trust Company, Park and Duncan, and the trustees of the HeW York, Boston & Montreal Railroad Company parties to the action, is significant. When a
Sackett neglected for four years to bring the action to trial. Indeed the trial seems to have been brought on and conducted by those who were interested to realize upon the claims which had been created during the four years of its pendency. There was apparently some danger that further delay would imperil, by further accumulation, the par value of the claims alreadyaccumulated. Certainly Sackett waited until the wreck of the railroad, so far as the bondholders were concerned, was complete. Such an action, thus instituted, controlled, and resulting, cannot be upheld. It was not a representative suit in fact. If it was such in form and regularity," then it is effectually impeached for fraud. The plaintiffs are entitled to a reversal of the judgment, and to a new trial in which they will be entitled to relief substantially the same as if the Sackett action had never existed. They were in no sense parties to that action, and therefore their rights remain untouched. It is said that they are bound by the receiver’s certificates, which were declared to be a first lien upon the property. This cannot be so "without a violation of constitutional protection. The court acquires jurisdiction of the parties and of the subject-matter before it, but, from the nature of the case, can only acquire jurisdiction of so much of the subject-matter as all the parties before it hold. When parties are unknown, equity provides for bringing them in, or reserving or securing their rights. A decree binds the parties to it. In railroad cases the courts have gone further than in other cases in displacing prior liens in order to preserve and operate the railroad, but only as between parties to the action, actual or constructive. They can create no lien against persons not such parties, and can displace none. Raht v. Attrill, 106 N. Y. 423, 13 N. E. Rep. 282, and cases there cited. As said in Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. at page 460, 6 Sup. Ct. 823: “Those who take receiver’s certificates must be deemed to have taken them subject to the rights of parties who have prior liens upon the property, and who have not been, but should
As there must be anew trial, we leave this question to be adjusted as the equities may then appear. There will need to be an identificat.on of the bondholders who are entitled to come in and share with the plaintiffs in this action. They are those who held aloof from the Sackett action. It is urged that the plaintiffs are estopped by their loches in not earlier signifying their dissent to Sackett’s claim to represent them. They are not barred by any statute of limitations. They are not shown to have been advised of the Sackett action, or of its purpose, or of its fraudulent character. It is said that it was the more notorious because of a legislative investigation. The notoriety, if it reached the purchasers, would have suggested that possibly some of the parties in interest were injured, and, if it reached the plaintiffs," it possibly aided them in ascertaining the means by which injury was done them. These are possibilities, not more. Laches which do not amount to an estoppel or violate any rule of law, do not release a cause of action, though often confirmatory of other evidence of its doubtful character. The only loches which we see in the case, affecting the plaintiffs’ rights by way of estoppel, is that of the Union Trust Company in allowing the sale to Hull and Lincoln to remain unchallenged until after the New York, Boston & Montreal Railway Company had, upon the strength of its recorded title from Hull and Lincoln,