
    ÆTNA INS. CO. et al. v. ALBANY & S. R. CO. et al.
    (Circuit Court of Appeals, Second Circuit.
    April 23, 1908.)
    No. 241.
    Appeal from the Circuit Court of the United States for the Southern District of New York.
    Charles F. Brown and James M. Beck, for appellants.
    A. H. Joline and E. P. Prentice, for appellees.
    Before LACOMBE, WARD, and NOYES, Circuit Judges.
   PER CURIAM.

A question which must be decided before any others should be considered is whether upon the facts disclosed in the record the bill can be maintained under equity rule 94. This has been held by the Supreme Court to be a jurisdictional question. City of Chicago v. Mills, 204 U. S. 321, 27 Sup. Ct. 286, 51 L. Ed. 504; Doctor v. Harrington, 196 U. S. 579, 25 Sup. Ct. 355, 49 L. Ed. 606. We have decided to certify such question to that court, reserving all other matters in controversy until answer thereto is received. The parties may agree upon the form of certificate, or, if they cannot agree, may submit their respective proposed forms at the opening of the May session. See 156 Fed. 132.  