Reports of Cases Heard and Determined in the Appellate Division of the Supreme Court of the State of New York Volume 127 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1908 Excerpt: ...to do. The agreement to create such a sinking fund was not made with them nor for their benefit, and did not enter, as a factor, into the agreement under which the larger issue was made. It follows, therefore, that the plaintiff is entitled to judgment; that it is entitled to receive and the defendant should certify and deliver bonds of the plaintiff to an amount not exceeding in all $204,000 par value thereof, in exchange for bonds of the same par value and amount of the Chest Creek Land and Improvement Company, now outstanding and which shall have been or may be redeemed under the sinking fund provision contained in the mortgage of the Chest Creek Land and Improvement Company, with costs. Settle form of judgment on notice. Inoasnm, MCLAUGHLIN and Lauonnm, JJ., concurred; Hooenron, J., dissented. Houourox, J. (dissenting): I think judgment should be directed for the defendant. The coal company bought the property of the improvement company subject to the existing mortgage. That mortgage provided that a sinking fund should be maintained from which $12,000 per annum of the bonded indebtedness should be paid. The property was mining property the value of which was diminished as the product was removed. The sinking fund provision was what might be termed an automatic scheme for the payment and redemption of a certain number of bonds yearly. The plaintiff now demands that a new First Department, July, 1908. Vol. 127. bond be issued for one that has been redeemed, paid, satisfied and canceled. It seems to me the defendant would be violating its duty in sanctioning such an issue. It is no answer to say that 252 bonds of the $3,000,000 issue provided for in plaintiifs mortgage were reserved for the purpose of taking up'a prior mortgage. A fair interpretation of th...