In re New York, NH & HR Co., 369.

• Decision Date: 30 June 1945
• Docket Number: No. 369.,369.
• Citation: 150 F.2d 169
• Court: U.S. Court of Appeals — Second Circuit
• Parties: In re NEW YORK, N. H. & H. R. CO.

150 F.2d 169 (1945)

In re NEW YORK, N. H. & H. R. CO.

No. 369.

Circuit Court of Appeals, Second Circuit.

June 30, 1945.

Joseph B. Ely, Richard Ely, and Ely, Bradford, Thompson & Brown, all of Boston (Seibert & Riggs, of New York City, of counsel), for appellants.

Judson C. McLester, Jr., of New York City, for appellees.

Oliver & Donnally, of New York City(Fred N. Oliver and Willard P. Scott, both of New York City, of counsel), for Mutual Savings Bank Group.

Stewart & Shearer, of New York City(William A. W. Stewart and M'Cready Sykes, both of New York City, of counsel), for United States Trust Co. of New York, Trustee of Harlem River & Port Chester Mortgage.

Wm. Meade Fletcher, Jr., of Washington, D. C., for Reconstruction Finance Corporation.

Davis, Polk, Wardwell, Sunderland & Kiendl, of New York City(Edwin S. S. Sunderland, James L. Homire, and William D. Tucker, Jr., all of New York City, of counsel), for Insurance Group.

White & Case, of New York City(Joseph M. Hartfield and Jesse E. Waid, both of New York City, of counsel), for Bankers Trust Co., Trustee, First and Refunding Mortgage.

Davies, Auerbach, Cornell & Hardy, of New York City(H. C. McCollom, of New York City, of counsel), for Irving Trust Co., Trustee under 6% Collateral Trust Indenture.

Beers & Beers, of New Haven, Conn. (Edmund Ruffin Beckwith, of New York City, of counsel), for Protective Committee for Holders of Boston and New York Air Line First Mortgage 4% Bonds.

Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

PER CURIAM.

The prior appeal, upon which our mandate was issued, was from an order approving a plan of reorganization which contained provisions for the purchase by New Haven of Old Colony assets.The opinion is reported in 147 F.2d 40.In the portion of the opinion dealing with the appeal by the Protective Committee for Bonds of Old Colonywe said, page 50:

"We conclude that the district court's order of approval must be reversed so that the Commission may make its own independent findings of value and of price."

Upon a motion by the New Haven trustees to modify the opinion we indicated in a supplemental opinion (page 54) that the Commission was at liberty to take additional evidence and modify the plan in the light of new facts, if it thought such a course desirable.Our mandate reversed the order on the appeal "of the Old Colony bondholders * * * and affirmed as to the other appeals, but with leave to the district judge to remand to the Commission all or any portions of the plan, if in his opinion it is desirable to have the Commission consider further any provisions of the plan in addition to those affecting Old Colony."The mandate commanded "that such further proceedings be had in the cause, in accordance with the decision of this Court as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding."

Order 792, now before us, after referring to the opinions and mandate of this court, recites that the district court has "determined that only the following limited reference of the proceedings to the Commission is required or desirable," and orders that the plan be referred back to the Commission, "but only for the following purposes:

"(1) for such further action with respect to the price to be paid for the Old Colony...