City of New York v. New York Co

• Decision Date: 12 January 1953
• Docket Number: No. 203,203
• Citation: 73 S.Ct. 299,344 U.S. 293,97 L.Ed. 333
• Parties: CITY OF NEW YORK v. NEW YORK, N.H. & H.R. CO
• Court: U.S. Supreme Court

344 U.S. 293

73 S.Ct. 299

97 L.Ed. 333

CITY OF NEW YORK

v NEW YORK, N.H. & H.R. CO.

No. 203.

Argued Dec. 19, 1952.

Decided Jan. 12, 1953.

Motion to Modify Judgment Denied March 9, 1953.

See 345 U.S. 901, 73 S.Ct. 639.

Messrs. Meyer Scheps and Seymour B. Quel, New York City, for petitioner.

Mr. Edward R. Brumley, New York City, for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The question presented is whether under the circumstances of this case reorganization of the respondent railroad under § 77 of the Bankruptcy Act¹ destroyed and barred enforcement of liens which New York City had imposed on specific parcels of the railroad's real estate for street, sewer and other improvements. The improvements were made and the liens were all laid prior to 1931. Reorganization was begun in the District Court in 1935. Subsequently, acting pursuant to subdivision (c)(7) of § 77 the court issued an order directing 'creditors' to file their claims by a prescribed date, after which unfiled claims would be denied participation except for 'cause shown.' The railroad was required to mail copies of the order to mortgage trustees or their counsel and to all creditors who had already appeared in court. Other creditors had to depend for their notice on two once-a-week publications of the order in five daily newspapers, one of which was the Wall Street Journal.² New York thus received no copy of the bar order. Its lien claims were never filed.

The court's final decree provided for transfer of the old railroad's properties to the newly organized company free from the city's liens.³ Jurisdiction was reserved to consider and act on future applications for instructions concerning disputes over interpretation and execution of the decree. Pursuant to this reservation the railroad brought the present action alleging that the city in failing to file had forfeited its claims; the railroad prayed for a declaration that the liens were forever barred, void and unen- forcible, and that the real property was discharged and released therefrom. The District Court agreed with the railroad and enjoined enforcement of the liens. 105 F.Supp. 413. The Court of Appeals affirmed, Judge Frank dissenting. 197 F.2d 428. In both courts the city made several arguments only two of which we need consider here: (1) Since the lien claims were collectible only out of specified parcels of real estate, the city was not a 'creditor' of the railroad and consequently was not required to file its claims in bankruptcy court; (2) in the absence of actual service of notice on the city, the court was without power to forfeit its liens because of its failure to appear as a claimant. To consider these questions we granted certiorari. 344 U.S. 809, 73 S.Ct. 37.

(1) We reject the city's contention that it was not a creditor within the meaning of § 77 of the Bankruptcy Act. Section 77(b) defines 'creditors' as '* * * all holders of claims of whatever character against the debtor or its property * * *' and specifically defines 'liens' as 'claims.'⁴ We had reason to comment recently on the broad coverage of this section in Gardner v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, where we held that state tax liens made states 'creditors' for purposes of § 77. True, the state's liens there were general charges against all railroad assets while the liens here are not. New York can look only to each parcel of property on which its liens are laid. But the reasons for our Gardner holding are equally ap- plicable here. New York is a 'creditor' in the statutory sense and consequently was required to file its claims in bankruptcy unless freed from that duty by lack of adequate notice.

(2) Section 77(c)(8) of the Act states that 'The judge shall cause reasonable notice of the period in which claims may be filed, * * * by publication or otherwise.' 11 U.S.C. § 205(c)(8), 11 U.S.C.A. § 205(c)(8). We hold that publication of the bar order in newspapers cannot be considered 'reasonable notice' to New York under the circumstances of this case.

Notice by publication is a poor and sometimes a hopeless substitute for actual service of notice. Its justification is difficult at best. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. But when the names, interests and addresses of persons are unknown, plain necessity may cause a resort to publication. See, e.g., Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078. The case here is different. No such excuse existed to justify subjecting New York's claims to the hazard of forfeiture arising from 'constructive notice' by newspaper. In the first place subdivision (c)(4) of § 77 is designed to enable the court to serve personal notices on creditors. It provides that 'The judge shall require * * *' proper persons to file in the court a list of all known creditors, the amount and character of their claims and their last known postoffice addresses....