ERIE-LACKAWANNA RAILROAD COMPANY v. United States

• Decision Date: 26 July 1967
• Docket Number: 2451.,2914,2903,No. 66 Civ. 2860,66 Civ. 2860
• Citation: 279 F. Supp. 313
• Parties: ERIE-LACKAWANNA RAILROAD COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants. The BALTIMORE AND OHIO RAILROAD COMPANY, the Chesapeake and Ohio Railway Company, Norfolk and Western Railway Company, Plaintiffs, v. UNITED STATES of America, Defendant. The CENTRAL RAILROAD COMPANY OF NEW JERSEY and Reading Company, Plaintiffs, v. UNITED STATES of America, Defendant. The DELAWARE AND HUDSON RAILROAD CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant, and Interstate Commerce Commission, Intervening Defendant.
• Court: U.S. District Court — Southern District of New York

279 F. Supp. 313

ERIE-LACKAWANNA RAILROAD COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

The BALTIMORE AND OHIO RAILROAD COMPANY, the Chesapeake and Ohio Railway Company, Norfolk and Western Railway Company, Plaintiffs, v. UNITED STATES of America, Defendant.

The CENTRAL RAILROAD COMPANY OF NEW JERSEY and Reading Company, Plaintiffs, v. UNITED STATES of America, Defendant.

The DELAWARE AND HUDSON RAILROAD CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant, and Interstate Commerce Commission, Intervening Defendant.

Nos. 66 Civ. 2860, 2903, 2914, 2451.

United States District Court S. D. New York.

July 26, 1967.

Shea & Gardner, Washington, D. C., for trustees of the property of Central Railroad of New Jersey, Debtor. William H. Dempsey, Jr., Washington, D. C., of counsel.

Gordon P. MacDougall, Washington, D. C., for City of Scranton and Milton J. Shapp.

Richard J. Lally, New York City, for Central Railroad of New Jersey.

Kelley, Drye, Newhall, Maginnes & Warren, New York City, for Norfolk & Western Railway, Frank H. Heiss, New York City, of counsel.

Migdal, Low, Tenney & Glass, New York City, for New Haven Bondholders Committee, Lawrence W. Pollack, New York City, of counsel.

Cravath, Swaine & Moore, New York City, for Erie-Lackawanna Railroad, Thomas D. Barr, and Eldon Olson, New York City, of counsel.

Hogan & Hartson, Washington, D. C., for Boston & Maine Corp., Edward A. McDermott, and James A. Belson, Washington, D. C., of counsel.

Gerald E. Dwyer, New York City, for New York Central Railroad Company, James B. Gray and J. H. Shapiro, New York City, of counsel.

Robert W. Ginnane and Fritz R. Kahn, Washington, D. C., for Interstate Commerce Commission.

Conboy, Hewitt, O'Brien & Boardman, New York City, for The Pennsylvania Railroad Company, Hobart L. Brinsmade, David J. Mountan, Jr., New York City, and Windsor F. Cousins, Philadelphia, Pa., of counsel.

Robert M. Morgenthau, U. S. Atty., for the Southern Dist. of New York, Brian J. Gallagher, Asst. U. S. Atty., for the United States and Interstate Commerce Commission, Howard E. Shapiro and William R. Weissman, Attys., Dept. of Justice, of counsel.

Richard B. Wachenfeld, Hoboken, N. J., for the Central RR Co. of New Jersey.

Sidley & Austin, Chicago, Ill., for Norfolk & Western Railway Co., Howard J. Trienens, Chicago, Ill., of counsel.

Nixon, Mudge, Rose, Guthrie & Alexander, New York City, for Delaware & Hudson Railroad Corp., Harry G. Silleck, Jr., New York City, of counsel.

Before FRIENDLY, Circuit Judge, and LEVET and WEINFELD, District Judges.

Memorandum on Motion for Injunction

PER CURIAM.

The United States of America and the Interstate Commerce Commission have moved this Court to enjoin

(1) the Norfolk and Western Railway Company from taking any further action in Civil Action No. 67-C-51-R, Norfolk and Western Ry. v. United States, before the United States District Court for the Western District of Virginia; and

(2) the City of Scranton and Milton J. Shapp from taking any further action in Civil Action No. 10054, Borough of Moosic et al. v. United States, 272 F.Supp. 513 before the United States District Court for the Middle District of Pennsylvania,

pending final determination of the instant actions by this Court.

For reasons indicated in our Memorandum Order of July 3, 1967, and in our order of today's date denying the motion of the City of Scranton and Shapp for a stay of 66 Civ. 2860 or for leave to dismiss their intervening complaint in that action without prejudice and on the basis of the authorities cited in the Memorandum in Support of the Motion, we entertain no doubt of the power and propriety of granting the relief sought by the United States and the Commission against them insofar as this relates to issues that can be litigated in the action in this court in which they have intervened, and we would do this if there were any evidence of need. However, the District Court for the Middle District of Pennsylvania has stayed proceedings in that court in Civ. No. 10054 until October 1, 1967, or further order of the court, and before that time we shall either have heard these parties in 66 Civ. 2860 or, if they should choose not to prosecute their intervening complaint, will have dismissed it with prejudice.

The portion of the motion asking us to enjoin the City of Scranton and Shapp from prosecuting so much of Civ. No. 10054 in the Middle District of Pennsylvania as relates to the inclusion order, and the N & W from prosecuting Civ. No. 67-C-51-E in the Western District of Virginia raises a closer question. While we have no desire to assume additional burdens, we must agree with the United States and the Commission, as the District Court for the Western District of Virginia also appears to do, that...