119 F. 634 | U.S. Circuit Court for the District of Northern New York | 1903
The affidavit of Hinsdill Parsons, president of the defendant herein Schenectady Railway Company, states the grounds on which the application to vacate is made as follows:
“The ground of the application is that no notice was served of the application for leave to file the bill as required by law, and that the bill is an improper bill of review, and does not state facts constituting any equity in the plaintiffs, and should not be allowed to be filed as a bill of review in its present form.”
On the argument, and in the brief for the defendants, it is urged that the order granting leave to file the bill was improperly granted because not founded on a petition or affidavits. No such point or claim is made in the moving papers, and it is only necessary to say that, the point not having been presented there as a ground for vacating the order, it will not be considered here further than to say it is presumed in the absence of proof that Justice Wallace acted on either a petition or affidavits in the nature of a petition. The affidavit of Mr. Parsons further states, in substance, that the subject-matter of these actions has already been presented in seven actions for injunctions in the supreme court in the state of New York (77 N. Y. Supp. 889), and that such actions are now at issue, and that such matters have already been presented to such court in applications for temporary injunctions restraining the defendant Schenectady Railway Company from operating its roads. The affidavit then goes on to deny some of the material allegations of such bill of con>plaint. The amended bill of complaint alleges the ownership or possession and occupation by the complainants, respectively, of certain lots of land on Washington avenue, in the city of Schenectady, and further states how such title was derived; that the Schenectady Street Railway Company was incorporated about February 24, 1886, and, having obtained certain consents specified, it constructed a horse railroad on State street, and from the westerly end of State street northerly along Washington avenue, passing in front of the places of the complainants Thompson, Beattie, the Pecks, the complainants Lansing and Whitmyre, and the respondent Paige, but not going as far north as the southerly line of the premises of the complainant Vrooman, nor in any way in front of or passing any of the premises of the complainants Vrooman and Van Epps; that until July 2, 1891, said company operated the said railroad with horse cars in the summer arid sleighs in the winter; that on the 2d day of July, 1891, having the consents mentioned, it changed to an overhead trolley and operated the railroad very irregularly with electric cars in the summer and sleighs in the winter, until it ceased the operation of the road as stated in such bill of complaint. It is then alleged that said railroad company made a mortgage to the Central Trust Company of New York on the xst day of September, 1891, to secure the bonds
Omitting certain allegations as to suits in the supreme court of the state of New York, none of which are res judicata as to the relief sought by this action, it appears from the amended bill of complaint that the Schenectady Railway Company was organized by said Kobbe, White, and Batchellor under the aforesaid sale of the mortgaged property and the laws of the state of New York, and that it in April, 1902, began to tear up Washington avenue and lay tracks there, relying upon the original consents of property owners to the construction of the original road, and which, as to certain parts thereof, was abandoned, as before stated. The prayer for relief is, in substance, that the decree of this court in such foreclosure action be reviewed and revised so as to omit from the description of the property therein Washington avenue, and that it be decreed that the agreement made between said Jones, as receiver, said property owners, and the city of Schenectady be and was assented and agreed to by all the property owners, by all the bondholders, by the Central Trust Company, by the Schenectady Street Railway Company, by the purchasers of such sale, and by the defendant the Schenectady Railway Company, ■and that same be approved by the court, and made binding on all the parties and all the world. Also that said defendant be restrained temporarily, and then by final decree, from building or operating its road on Washington avenue, etc.
The complainants in this action were not parties to such foreclosure. This action is in the nature of a motion to open the decree in that ■action, and be made parties to that foreclosure action, and permitted to set up the said agreement made during its pendency as to the abandonment of the road on Washington avenue. It is not shown that these property owners had actual notice of such proceeding, or of such decree, or of such deeds, or of any purpose on the part of the new ■company—really the purchaser at the sale—to disregard the said agreement and reconstruct the road or construct a new one on the strength of the consents to the establishment and operation of the original road. The respondent herein, the Schenectady Railway Company, has no equitable right to construct and operate a road on Washington avenue if it knew of the agreement mentioned, and its full execution, when organized. Having a decree of this court conveying to it all the mortgaged property, it is protected thereby; and it is ■claimed that, if this action cannot be maintained, then the property owners on Washington avenue are without remedy, and must submit to have this railroad in front of their premises, notwithstanding such agreement, which it is claimed was mutual, and based on good and sufficient considerations. This is a supplemental bill in the nature of a bill of review, and to a certain extent, and as to the parties named herein, an original bill in a new suit. It is a bill filed by new parties, whose rights and interests are affected by the decree made in the ■foreclosure action, and who seek to set up important and material matters which occurred during the pendency of that action, and which ■new matters are directly connected with the subject-matter of such
“The only question is whether she has taken the proper course by filing this hill. It is objected that it is a supplemental bill in the nature of a bill of review, which ought not to be filed without the leave of the court. There is something very plausible in the argument,- because (as it is said), if every defendant is entitled to come and alter the account, it would lead to great inconvenience. I do not think it would lead to that result. There is a considerable difference between a plaintiff and' a defendant coming, after decree, and asking additional relief against another defendant. The relief is necessarily additional to that already obtained, for to file an original bill would be idle; unless it were desired to alter the whole of -the decree.”
The motion to vacate the order granting leave to file the bill and to strike the bill from the files of the court is denied.