Central Trust Co. of New York v. Third Ave. R. Co.

• Decision Date: 02 May 1910
• Docket Number: 315.
• Citation: 180 F. 710
• Parties: CENTRAL TRUST CO. OF NEW YORK v. THIRD AVE. R. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

180 F. 710

CENTRAL TRUST CO. OF NEW YORK v. THIRD AVE. R. CO. et al.

No. 315.

United States Court of Appeals, Second Circuit.

May 2, 1910

Louis Marshall, for appellant.

Bowers & Sands(John M. Bowers and Middleton S. Borland, of counsel), for appellee.

Evarts Choate & Sherman(H. J. Bickford, of counsel), for receiver Whitridge.

Before COXE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

The Central Trust Company, trustee under the mortgage of the Third Avenue Railroad Company, brought an action to foreclose.The appellant, the American Surety Company intervened and presented its claim to be first paid the sum of $44,561.32 out of the proceeds of the mortgaged property.The claim for preference is rested upon the fact that the appellant, as surety of the railroad company upon an appeal from a judgment in favor of the city of New York for car license fees incurred before, but for which suit was brought and judgment recovered after, the date of the mortgage, has paid the judgment.The special master and the court below denied the petition, and we concur in their conclusion.

The appellant paid the judgment in the ordinary course of its business, in consideration of premiums received from the railroad company, without any purpose of benefiting the mortgagee.It is by subrogation clothed only with the rights of the city, and these are expressed in the judgment which has been assigned to it, and which it may enforce by execution in the usual way.Assuming, in accordance with the appellant's contention, that the license fees are to be regarded as taxes, still neither they nor the judgment for them are...