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A finding thus supported, with absolutely nothing to challenge its correctness, or by which to correct it, if thought to be excessive, we do not feel justified in disturbing.

It only remains, therefore, to apply it to the amount or sum really in controversy. The master has applied this percentage to the whole fund (less interest), or nearly $2,000,000. The total number of bonds. outstanding, and prima facie having the right to share in the distribution, is 1,948. The contest waged, however, was waged on behalf of 1,564 only of these bonds; 384 of them being held by the Railroad Company. Even though the course of the proceeding was such as that the 384 shares figured in the recovery, and to this extent increased the total sum of the fund, the injury was an injury to the holders of the 1,564 shares, and the recovery was of the sum due them, and the 384 shares were no part of the sum "really in controversy." The sum thus really in controversy enters into the measure of compensation, unincreased by the sum which was due by the Railroad Company to itself. The allowance made by the master of counsel fees on the basis of the whole fund, rather than on the actual recovery, has much to support it, because it seems to be a logical corollary of the finding that the whole fund should contribute. The two thoughts seemingly move in opposition and in apparent conflict. We think, however, that, although they move in opposite directions, there is room for them to pass without collision. The case is somewhat analogous to that of a successful ejectment litigation waged to recover a four-fifths interest in a real estate property, the entire interest in which must be brought into the case for partition and distribution purposes. Accepting the finding made by the master on the changed basis of calculation, the allowance should be reduced from $250,000 to $200,000, and to this extent the exceptions are sustained.

The foregoing disposes, so far as concerns this court, of the exceptions filed on behalf of the Railroad Company. In discussing those filed on behalf of the plaintiff, we will again follow the order of questions into which the exceptions have been analyzed by counsel.

The key to the answer to the first question, raising the inquiry into the status of the Railroad Company as a bondholder, is to be found in this: The fund is the property of the Canal Company. It has, it is true, been set aside for the benefit of the bondholders; but this title is that of the bondholders as a class, and not the plaintiff or any particular bondholder. Every bondholder, it is true, has the right to resist his share being diminished by the participation of any one who is not a bondholder; but who is and who is not a bondholder is to be determined, as between the Canal Company and the claimant, and unless his status as a bondholder can be denied, his right to participate as such cannot. We see no wrong to any bondholder in the Canal Company directly or indirectly borrowing money to meet its interest obligations, or in issuing bonds therefor; nor do we see the right of any bondholder to complain if the Canal Company had issued bonds in payment of any indebtedness. This is predicated, of course, upon the silence of the mortgage contract. It is not intended by the presentation of this view to draw in question the correctness of the findings of the master upon

this branch of the case, but, on the contrary, to buttress them by supporting his conclusion in any event. The above propositions are accepted by counsel for plaintiff. They urge, however, that what was done "was in violation of the railroad's contract with the bondholders." The answer is summed up in a question, "Wherein ?"

The remaining contention, that the costs of the reference should be imposed "in whole or in part" upon the Railroad Company, is met as to the latter by the observation that by placing the costs upon the fund the Railroad Company does pay the costs in part. The suggestion of a finding that the reference to a master was at the instance of the defendant we cannot accept. The reference grew out of the necessities of the case, and was fully justified by rule 59 (198 Fed. xxxv, 115 C. C. A. XXXV). The slightest glance at the voluminous report of the master is sufficient to show that it would have been utterly impracticable for the court to have made the investigation into which the master has gone. There would be no justification whatever for imposing costs upon the defendant. The other matters affecting the costs of the reference we will not dispose of, until we learn whether counsel wish to be heard thereon. If so, the hearing may take place at any time. If no further hearing is desired, the remaining questions will be disposed of at once. The fund awaiting distribution is large, and counsel are invited to suggest any practicable method which may occur to them of making a partial distribution now, reserving such sum as will protect the parties in the assertion of their appellate rights.

A formal decree may be submitted, embodying the conclusions hereinabove stated.

IMPERIAL FILM EXCH. v. GENERAL FILM CO. et al.
(District Court, S. D. New York. December 14, 1915.)

1. CORPORATIONS 617(1)-DISSOLUTION EFFECT.

The dissolution of a corporation is equivalent to the death of a natural person.

2. MONOPOLIES

28-INJURIES ACTION.

An action under Sherman Anti-Trust Act July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1916, § 8829), for treble damages for injuries to person or property by reason of unlawful monopoly, is one for a personal wrong, and sounds in tort.

3. COURTS 339-FOLLOWING STATE LAWS-ABATEMENT AND REVIVAL. Local state statutes in respect to abatement and survival of actions have no application to an action depending solely upon a statute of the United States.

4. COURTS

339-SURVIVAL OF ACTION-COMMON LAW.

Where there is no federal statute, either preventing or permitting the survival of an action depending solely on a federal law, the rules of common law, which include judicial opinions, even the most modern, on points not regulated by statute, must be looked to, to determine whether the action survives.

5. ABATEMENT AND REVIVAL

57-SURVIVAL COMMON LAW.

An action for treble damages, brought under Sherman Anti-Trust Act, § 7, based on combinations in restraint of trade, survives the death of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the person or dissolution of a corporation injured, being an action for injuries to property, which might have been assigned; the modern rule being in favor of assignment of actions, and tort actions for injuries to property which were assignable surviving. 6. ABATEMENT AND REVIVAL

73-CORPORATIONS-REVIVAL OF ACTION—

PARTIES.

Where, on dissolution of a corporation, the state court appointed £ trustee, who was in all respects the equivalent of an assignee, such trustee may be substituted as plaintiff in an action previously instituted by the corporation to recover treble damages under Sherman Anti-Trust Act, § 7, for injuries occasioned by a violation of the act.

At Law. Action by the Imperial Film Exchange against the General Film Company and others to recover treble damages under Sherman Anti-Trust Law, § 7. On motion by one appointed trustee of the property of plaintiff corporation to be substituted as party plaintiff. Motion granted.

Plaintiff is a New York corporation, which, pursuant to the General Corporation Law of that state (Consol. Laws, c. 23), applied for voluntary dissolution. The application was granted, and on May 20, 1913 (after the institution of this suit), an order was entered in the Supreme Court reciting that the plaintiff herein was insolvent, and that it would be for the benefit of its stockholders that it be dissolved; whereupon it was "ordered that the said corporation, Imperial Film Exchange, be and it hereby is dissolved." The order then proceeded to appoint Mr. Joseph R. Truesdale "permanent receiver of all the assets and property of said corporation, with all the powers conferred by law on permanent receivers." The statute above referred to (section 231 et seq.) provides that permanent receivers of New York corporations in dissolution "shall be trustees of the property [of the corporation] for the benefit of the creditors of the corporation and of its stockholders," and also that such receivers shall be "vested with all the property real and personal of the corporation," etc. Mr. Truesdale then moved in this count to be substituted as plaintiff herein and to amend the complaint in an appropriate manner. This motion is opposed on the ground that the right of action set forth in the complaint died with the death (i. e., the dissolution) of the plaintiff corporation; that therefore the action abated, and cannot now be revived, because the cause of action itself did not survive the dissolution aforesaid.

Laurence A. Sullivan and Eugene M. Gregory, both of New York City, for receiver.

Harold Nathan, of New York City, for defendants.

HOUGH, District Judge. The exact point of law raised by this motion has never been decided, nor, indeed, so far as my own investigations and those of counsel reveal, has it ever been mooted before. The very able and interesting briefs of counsel I have considered a long time, and yet after such lengthy reflection it appears to me that the matter must be decided by one's views of some elementary and fundamental propositions. To put the matter in another way, decision must be here arrived at, not by a nice consideration of closely joining decisions, but by the view entertained of the application of certain broad propositions, concerning the general correctness of which certainly no counsel here concerned could entertain any doubt. Defendants' position may I think be fairly outlined thus:

[1] 1. The dissolution of the plaintiff is equivalent to the death of a natural person. To this I agree, and consider the references made

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inderes

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in argument entirely sufficient, viz.: Greeley v. Smith, 3 Story, 657, Fed. Cas. No. 5,748; Pendleton v. Russell, 144 U. S. 640, 12 Sup. Ct. 743, 36 L. Ed. 574; Matter of Stewart, 39 Misc. Rep. 275, 79 N. Y. Supp. 525; Id., 40 Misc. Rep. 32, 81 N. Y. Supp. 209; Id., 86 App. Div. 627, 83 N. Y. Supp. 1117; Id., 177 N. Y. 558, 69 N. E. 1131.

[2] 2. The cause of action set forth in the complaint herein (or any cause of action properly brought under section 7 of the Sherman Act) is certainly for a personal wrong, and therefore an action for tort. I agree to this as far as it goes, but do not think that it states the whole truth.

[3] 3. Since this suit depends for its vitality solely upon a statute of the United States, the statutes of the state of New York in respect of abatement and survival of actions or causes of action have no application. To this I agree, upon the authority of the cases cited: Michigan Central, etc., Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Baltimore & Ohio R. R. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.

[4] 4. There is no statute of the United States either preventing or permitting the survival of such a cause of action as this. Therefore the rules of the common law become applicable. Holding common law to include also judicial opinions, even the most modern, on points not regulated by statute, I agree to this.

[5, 6] 5. The dissolution (i. e., death) of this plaintiff corporation must have wholly abated this action, because the action is for tort, and the common-law rule regarding the death of personal actions still applies. To this conclusion I cannot agree, because of what I conceive to be the half truth heretofore alluded to. Such an action as this under the Sherman Law can only be brought when a person is "injured in his business or property." Section 7. The action is to recover "threefold the damages by him sustained"; i. e., sustained by and in the said "business" or "property."

Such an action as this might well be called sui generis, but surely the nearest approach to one of the old legal categories that can be made is to assign this new statutory cause of action to that of actions for a tort occasioning injury to property, of which perhaps the most ancient and familiar illustrations are trespass q. c. f. and trespass d. b. a. By a long list of decisions the general test of survivability of actions is their assignability. In fact, many, if not most, of the cases seem to reason in a circle; i. e., if the question is of assignability, a case of survival is thought to rule it, and e converso. See such decisions catalogued in 4 Cyc. 23. In short, assignability and the right of survival are attributes of causes of action discoverable by the same tests; as a general rule they are "convertible terms." Selden v. Ill. Trust, etc., Bank, 239 Ill. 67, 87 N. E. 860, 130 Am. St. Rep. 180; Tanas v. Municipal Gas Co., 88 App. Div. 251, 84 N. Y. Supp. 1053; Morenus v. Crawford, 51 Hun, 89, 5 N. Y. Supp. 453; Grocers' National Bank v. Clark, 48 Barb. (N. Y.) 26.

Admitting that most actions for wrong to the person, or indeed to a person, are still subject to the common-law rule, it is several cen

turies since an exception was established (in the language of Story)

that:

"Vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property may pass by assignment." Comegys v. Vasse, 1 Pet. at 213, 7 L. Ed. 108.

Sometimes this rule is covered up or disguised by an assignment of the property injured, as in Tome v. Dubois, 6 Wall. 548, 18 L. Ed. 943, where the defendant had wrongfully deprived the plaintiff's assignor of a quantity of sawlogs. The assignor sold the sawlogs to the plaintiff, though he had no possession of them, and the plaintiff maintained an action for conversion. In New York, not merely such property might have been assigned, together with the cause of action. growing out of it, but the cause of action itself might have been directly assigned. Richtmeyer v. Remsen, 38 N. Y. 206.

Assuming that the cause of action set forth in this complaint, being statutory, is sui generis, the Congress has not prescribed whether said cause of action may be assigned or not. In the absence of such permission or prohibition, the question of assignability of rights conferred by statutes is to be governed by the general principles regulating that quality in choses in action in general. The general rule was laid down in Meech v. Stoner, 19 N. Y. 26, when Comstock, J., said, in speaking of the right to assign a claim under the statute for money lost at gambling:

"The assignability of things in action is now the rule, nonassignability the exception; and this exception is confined to wrong done to the person, the reputation, or the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage." 19 N. Y. 29.

Therefore, if this be regarded merely as a statutory claim, it is of such a nature as to be assignable. The chose in action alleged to exist in the complaint is undoubtedly property in the largest sense of that word, the test whereof is that it could by appropriate process be reached by the creditors of the Imperial Film Exchange. I do not think it open to doubt that a judgment creditor of this plaintiff could by proceedings supplementary to execution procure the appropriation of this cause of action to himself in satisfaction of his judgment. This is enough to prove that it is property.

The Supreme Court of the state by its order has, in obedience to the statute, preserved and handed on to Mr. Truesdale as trustee all the property of this plaintiff; that is, it has taken possession of everything that the plaintiff could have assigned and everything that the creditors of the plaintiff could hope to reach, either at law or in equity. This lawful action of the court having supervision of this corporation is the equivalent (at least) of an assignment.

Because, therefore, the permanent receiver, Mr. Truesdale, is the equivalent of an assignee, because the cause of action is capable of assignment, and Mr. Truesdale has become the owner of it, I regard the legal death of the corporation as an immaterial element in this application. Therefore the motion is granted.

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