Majority
p. 664Central Trust Company of New York, Plaintiff, v. The Pittsburg, Shawmut and Northern Railroad Company et al., Defendants. Frank Sullivan Smith, as Receiver of The Pittsburg, Shawmut and Northern Railroad Company, Appellant; Central Trust Company of New York, as Trustee under a Mortgage of The Central New York and Western Railroad Company et al., Respondents. (Argued March 1, 1918; decided May 7, 1918.)
Headnote
Central Trust Co. of N. Y. v. Pittsburg, S. & N. R. R. Co., 179 App. Div. 607 , reversed.Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department entered October 20, 1918, which reversed an order of Special Term authorizing an issue of receiver’s certificates in so far as it provided that the lien of such certificates should be prior to that of a first mortgage covering certain of the railroad properties.
The following question was certified: “ Had the Special Term power to determine the question of the priority of the receiver’s certificates, upon the motion and the papers before it, as against the first mortgage bondholders or their trustee, named in the first mortgage?”
Alton B. Parker and Frank Sullivan Smith for appellant.
Arthur H. Van Brunt and Orville C. Sanborn for Central Trust Company, respondent.
Welles V. Moot, Adelbert Moot and James.C. Sweeney
for Pacific Improvement Company, respondent.
The order of the Appellate Division reversing the order of the Special Term, entered July 11,
p. 665
1917, should be reversed, with costs, and question certified answered in affirmative, and case remitted to the Appellate Division for consideration on the merits in accordance with opinion of Chase, J., handed down herewith on appeal from order reversing order entered May 19, 1917. (See 223 N. Y. 347 .)
His cock, Ch. J., Chase, Collin, Cuddeback, Car-bozo and Andrews, JJ., concur; Pound, J., not voting.
Order reversed, etc.