American Engineering Co. v. Metropolitan By-Products Co., Inc.
| Decision Date | 23 June 1921 |
| Docket Number | 253. |
| Citation | 275 F. 40 |
| Parties | AMERICAN ENGINEERING CO. v. METROPOLITAN BY-PRODUCTS CO., Inc. (three appeals). In re LEWIS & KELSEY. |
| Court | U.S. Court of Appeals — Second Circuit |
Davison & Underhill, of Brooklyn, N.Y. (Alfred T. Davison and Harold C. McCollom, both of New York City, of counsel), for appellants Columbia Trust Co. and Bailey and others.
Oscar A. Lewis and A. Bertron Reed, both of Brooklyn, N.Y., for appellant Title Guarantee & Trust Co.
Deiches & Goldwater, of New York City (Robert H. McCarter, of Newark N.J., and Maurice Deiches, of New York City, of counsel), for appellant Davis.
Lewis & Kelsey, George Gordon Battle, and Frederick T. Kelsey, all of New York City, for appellees Lewis & Kelsey.
Lewis & Kelsey, of New York City (Frederick T. Kelsey and Wallace T Stock, both of New York City, of counsel), for appellee Moffetty.
John P. O'Brien, Corp. Counsel, of Brooklyn, N.Y. (John F. O'Brien and Josiah A. Stover, both of New York City, of counsel), for appellee city of New York.
Shearman & Sterling, of New York City (William W. Lancaster and James A. Stevenson, Jr., both of New York City, of counsel), for appellee International 'Bank.
Ferdinand I. Haber, of New York City, for appellee Cobwell Corporation.
Charles A. Brodek, of New York City, for committee of general creditors.
Before WARD, HOUGH, and MANTON, Circuit Judges.
The question to be disposed of arises in an ordinary receivership in equity of the Metropolitan By-Products Company, Inc., in the United States District Court for the Eastern District of New York. A fund of $202,000 was deposited with the Central Union Trust Company, trustee, as collateral to secure the New York Sanitary Utilization Company for the performance by the Metropolitan Company as lessee, of its covenants in a lease of the Sanitary Company's garbage plant at Barren Island, N.Y. Any surplus remaining after the claims of the Sanitary Company will go to prior lien claimants.
Prior lien claimants were as follows: (1) Title Guarantee & Trust Company as trustee under the first mortgage of the Metropolitan Company dated July 2, 1916, to secure an issue of $1,000,000 of bonds, by Oscar A. Lewis, Esq. (2) Holders of certain preferred notes of the Metropolitan Company to the amount of $290,000, by Davison & Underhill, Esqs. (3) Columbia Trust Company as substituted trustee under a mortgage of the Metropolitan Company dated September 1, 1917, for $359,200 of bonds outstanding, by Davison & Underhill, Esqs., and Cullen & Dykman, Esqs. (4) The International Bank, relying on an agreement to be given receivers' certificates to secure the unpaid balance of $30,000 of a loan to the receivers, by Shearman & Sterling, Esqs. The city of New York, holder of receivers' certificates in the amount of $33,000, by the corporation counsel. (5) The receivers' creditors by Lewis & Kelsey, Esqs., attorneys for the receivers.
As a result of our opinion in 267 F. 90, there is a surplus of about $128,000.
Applications were made to the District Court by Mr. Oscar A. Lewis, Messrs. Davison & Underhill and Cullen & Dykman for allowances out of the fund for their services and expenses. August 27, 1920, the District Court awarded to Mr. Lewis $4,000, to Messrs. Davison & Underhill $15,141.14, to Messrs. Cullen & Dykman $3,117.90. November 17, 1920, upon an application by Messrs. Lewis & Kelsey as attorneys for the receiver, the court modified its decree of August 27 by adding an award to them of $15,000. These are appeals from that order.
It is said that because the District Court reserved at the end of its decree of August 27th jurisdiction as to matters not therein disposed of, this award to Lewis & Kelsey is not final or appealable. But leave to apply at the foot of a decree for further relief is very usual, and does not prevent the decree from being final (French v. Shoemaker, 12 Wall. 86, 20 L.Ed. 270), or the order from being appealable (Farmers' Loan & Trust Co., petitioner, 129 U.S. 206, 9 Sup.Ct. 265, 32 L.Ed. 656; Odell v. Batterman Co., 223 F. 292, 138 C.C.A. 534.
The attorneys for these various claimants were seeking to reduce the claim of the Sanitary Company upon the...
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