Lawrence v. Southern Pac. Co.

• Decision Date: 25 November 1908
• Parties: LAWRENCE v. SOUTHERN PAC. CO. et al.
• Court: U.S. District Court — Eastern District of New York

165 F. 241

LAWRENCE v. SOUTHERN PAC. CO. et al.

United States Circuit Court, E.D. New York.

November 25, 1908

Battle & Marshall (David Gerber and H. Snowden Marshall, of counsel), for plaintiff.

Joline Larkin & Rathbone (Arthur H. Van Brunt, of counsel), for defendant Houston & T.C.R. Co.

CHATFIELD District Judge.

A long statement of facts on the present application seems unnecessary. Certain litigation has been had in the state courts, resulting in the dismissal of the complaint. MacArdell v. Olcott, 189 N.Y. 368, 82 N.E. 181. A second action, upon allegations growing out of the same state of facts, but setting forth a different cause of action, has been brought in the Supreme Court of the county of Queens, in the state of New York, by Walter B. Lawrence, on behalf of himself and other stockholders of the Houston & Texas Central Railway Company, against Southern Pacific Company, Frederic P. Olcott, Central Trust Company of New York Farmers' Loan & Trust Company, Metropolitan Trust Company of the City of New York, the Houston & Texas Central Railroad Company, and Houston & Texas Central Railway Company. Before answer the defendants Southern Pacific Company, Frederic P Olcott, and the Houston & Texas Central Railroad Company applied for an order of removal, upon an affidavit showing that the Southern Pacific Company was a corporation of the state of Kentucky and a citizen and resident of that state that the defendant Frederick P. Olcott was a citizen and resident of the state of New Jersey, that the Houston & Texas Central Railroad Company and the Houston & Texas Central Railway Company were corporations of the state of Texas and citizens and residents therein, that the defendants Central Trust Company, Farmers' Loan & Trust Company, and the Metropolitan Trust Company of the City of New York were all corporations of the state of New York, and that these last three named trust companies are not necessary or indispensable parties to the action. The other allegations of the affidavit upon which the order of removal was obtained are not called into question, and seem to comply with the requirements of the statute. As the result of this application an order of removal was entered in the Supreme Court of the county of Queens, and the record was filed in the Circuit Court of the United States for the Eastern District of New York, upon the 16th day of March, 1908. The present motion to remand was brought on before this court upon the 20th day of March, 1908, and was duly argued and submitted.

The plaintiff contends upon the motion to remand that he seeks to impress a trust or obligation to convey certain lands upon both the defendant Olcott and the three New York trust company defendants, which trust companies hold title to these lands for the protection of certain mortgage bondholders. The defendants claim, however, that the defendant Olcott is apparently only given a reversion in the equity of redemption, as to which the right to a trust exists if the plaintiff be entitled to any such right. The person in possession of land, of which it is sought to obtain possession, is a necessary party to any such action. Construction Co. v. Cane Creek, 155 U.S. 283, 15 Sup.Ct. 91, 39 L.Ed. 152. It is apparent that an action brought by the plaintiff, a resident of Queens county, in the state of New York, could not be brought against the Central Trust Company, a resident of the county of New York, in the same state, in company with other defendants, in the courts of the United States, under claim of diversity of citizenship, if the trust company is an indispensable party. The defendants who filed the petition for removal in the state court, it will be noted, include only Mr. Olcott, who is admitted by all parties to be both necessary and indispensable as a party defendant, and the Southern Pacific Company and the Houston & Texas Central Railroad Company, who are admittedly not residents of the state of New York. These defendants have alleged that the Central Trust Company and the other New York trust companies are not necessary or indispensable parties. The notice of this present motion was directed to and served upon the attorneys for the defendants who petitioned for removal; but the Central Trust Company of New York, together with the two other trust companies, have not appeared by attorney in the action nor upon any of the motions. The plaintiff is insisting upon his right to sue these absent defendants, and to ask, as he claims, affirmative relief against them, and the complaint, so far as the record in this case is concerned, is the only paper from which this court can determine the present motion. The decision in the MacArdell Case may throw some light upon the holding of the New York courts with reference to the agreements and deeds involved herein, but the question of the interpretation of the present complaint must be passed upon...