Thompson v. Schenectady Ry. Co.
| Decision Date | 16 July 1903 |
| Parties | THOMPSON et al. v. SCHENECTADY RY. CO. et al. |
| Court | U.S. District Court — Northern District of New York |
Edward Winslow Paige, for complainants.
Marcus T. Hun, for Schenectady Ry. Co.
Butler Notman, Joline & Mynderse, for Central Trust Co.
The bill of complaint in this action has been before this court on a motion to vacate an order of Justice Wallace granting leave to file same, and also to strike such bill of complaint from the files of the court. The case is reported in 119 F 634, where the facts alleged are quite fully stated, and reference will be had thereto without fully restating them here.
It is well to say, however, in brief, that the complaint alleges that the complainants own and are in the possession of certain premises on Washington avenue, in the city of Schenectady; that about February 24, 1886, the Schenectady Street Railway Company was incorporated as a street surface railway company, constructed a horse railway on State street and on Washington avenue in front of the premises of the complainants, and that until July 2, 1891, it operated the said railway with horse cars in the summer and sleighs in the winter; that thereafter, having consents, it changed to an overhead trolley, and operated its road on Washington avenue very irregularly with electric cars in the summer, and sleighs in the winter, until it ceased the operation of its road. The complaint then alleges that on the 1st of September, 1891, the Schenectady Street Railway Company made a mortgage to the Central Trust Company of New York to secure certain bonds therein described, which was duly recorded, and which conveyed the railway franchises and other property of the defendant railway company, described in said mortgage, as follows (then follows a description of the property along which said railway ran, including Washington avenue); that about August 14, 1893, one Williams filed in this court, the Circuit Court of the Northern District of New York, a bill against the Schenectady Street Railway Company, which is set out in full, in which action one John Muir was appointed receiver of said company, and entered into the possession of all the property of said Schenectady Street Railway Company. The complaint then alleges that October 10, 1893, the common council of the city of Schenectady took into consideration a petition for the abandonment of the said railway on Washington avenue, and thereupon the common council adopted a resolution that the running of cars over that portion of the said railway lying between the easterly side of Church street and Washington avenue, and on Washington avenue from its intersection with State street to the Mohawk river bridge might be dispensed with until the 1st of June, 1894. The mayor of the city approved such resolution.
The running of the railroad on Washington avenue was then discontinued, and has never been resumed, except as hereinafter stated. December 14, 1893, the Central Trust Company filed in this court a bill of complaint against the Schenectady Street Railway Company for the foreclosure of the mortgage mentioned, and June 19, 1894, an order of this court was made appointing George W. Jones receiver of said company and of all its property and franchises. About September 1 1894, a decree passed in that action. October 2, 1894, petitions were presented to the common council of the city of Schenectady by certain of the property owners on Washington avenue, and by George W. Jones as receiver of the Schenectady Street Railway Company, praying that the common council consent and authorize the said Street Railway Company to discontinue permanently the running of its cars on said portion of its road, and to remove and take up its track from Church street to the Mohawk Bridge, said company to remove its track at once, and relay the pavement as fast as the track was taken up. In said petitions it was expressly stated that it was understood and agreed that said action of the common council and of the Street Railway Company was not to affect in any way or prejudice in any way the franchise or any of the rights of said Street Railway Company, except as to the running of its cars from Church street down to the Mohawk Bridge. Thereupon the common council of the city of Schenectady adopted a resolution authorizing the railway company to dispense permanently with the operation of its road between Church street and the Mohawk Bridge on condition that the track on said portion of said streets be promptly removed; that the pavement on said portion of Washington avenue be restored; and that the said receiver reimburse the contractor now repaving the said portion of said street for any extra expense for labor and material incurred by said contractor by reason of the removal of said track; in all other respects the license of the Schenectady Street Railway Company to be and remain unchanged, in full force and effect. That resolution was approved by the mayor of said city. The track on said Washington avenue and on the block of State street between Washington avenue and Church street was then directly taken up, and the pavements on both said streets restored, and it is alleged that this was done by said Jones as such receiver, and that there has been no railroad or track there since, except as stated. January 12, 1895, the special master in said foreclosure action reported that he had made a sale in said foreclosure action to Kobbe, White, and Batchellor. A decree was passed in the Williams action, and it therein appeared that Cravath & Houston represented all the bonds secured by said mortgage, and also said Jones as receiver. February 8, 1895, the court directed the carrying out of the sale made to Kobbe, White, and Batchellor, and pursuant thereto deeds were given to the purchasers by the special master, by Jones as receiver, and the Schenectady Street Railway Company, containing a description of the property as contained in the mortgage. It is also alleged that said Jones, receiver, turned over the control and management of all the mortgaged property to the defendant the Schenectady Railway Company February 17, 1895, and that since that date the said property has been possessed, controlled, and managed by this last named company, and it is also alleged that it appeared from the record that Cravath & Houston were counsel for the Schenectady Railway Company. The bill of complaint further alleges that the Schenectady Railway Company and its officers then knew of the hereinbefore mentioned agreement between Jones, as receiver, the property owners on Washington avenue, and the city of Schenectady that the road be abandoned on Washington avenue. The bill of complaint alleges also that April 4, 1902, the Schenectady Railway Company began to tear up Washington avenue and lay a railroad upon it, etc., and that the Schenectady Railway Company was organized by the purchasers of said...
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Fiske v. Buder
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