
    James F. Passage, Appellant, v. The Dansville and Mt. Morris Railroad Company and Others, Respondents.
    
      Beeeirer’s certificates — they must be enforced in the court directing their issue.
    
    " In an action in the Circuit Court of the United States an order was made, appointing a receiver of the Dansville and Mount' Morris Railroad Company, which contained a provision restraining all persons from interfering with or in any way disposing of the property of the railroad company except to turn over, transfer and convey the same to the receiver, and subsequently such court made an order, authorizing the receiver to issue certificates of indebtedness, which provided: “ Each and all of such certificates so to be issued pursuant to this order by the said receiver, with interest thereon until paid in full, to be a lien and charge on all the property of the defendant, the Dansville and Mount Morris Railroad Company, in the possession of the receiver prior to the lien of the mortgage executed to the Farmers’ Loan and Trust Company, dated November 1, 1891, and mentioned in the bill of complaint herein, and prior to the lien of any judgment now of record against the defendant, and that in a final order or decree to be made herein, before the discharge of the receiver, provision is to be made for the payment of any such certificates that may be outstanding.”
    
      Held, that a person who accepted a certificate issued pursuant to such order, which was indorsed thereon, was not entitled, during the pendency of such action in the Circuit Court, to maintain an action in the Supreme Court of the State of New York to foreclose the lien and to have the property of the railroad corporation sold and its proceeds applied to the payment of the certificate, but would be required to seek relief in the Circuit Court of the United States.
    Appeal by'the plaintiff, James F. Passage, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Livingston on the 3d day of November, 1898, upon the decision of the court, rendered after a trial at the Livingston Special Term, dismissing the complaint upon the merits.
    This action is brought to foreclosé the lien of certain certificates issued by the receiver of the defendant, the Dansville and Mount Morris Railroad Company, pursuant to orders of the Circuit Court of the United States made in an action then and still pending in that court. Copies of the orders are attached and treated as a part of the amended complaint. In the decision of the learned justice who presided at the Equity Term is found the following language : “No proofs were taken on the trial of this action, but all the facts alleged in the amended complaint and averred in the several answers herein were on the trial admitted to be true, and accordingly such I find to be the facts of this case. It is believed that the action is without precedent and that there is no adjudicated authority for or against its maintenance, but, upon the facts found as above, I hold and decide that the present action is in derogation of the action and proceedings in the Circuit Court of the United States above mentioned, is inconsistent therewith, and if maintained would defeat fro tanto the object and purposes thereof; and I, therefore, hold and decide that this action ought not to be maintained, but that the complaint therein should be dismissed on the merits.”
    An exception was filed to the conclusion of law stated in the decision of the Special Term.
    
      
      J. M. Hastings, for the appellant.
    Turner, McClure & Rolston, for the Farmers’ Loan and Trust Company, trustee, respondent.
    
      Charles Gibson Bennett, for the receiver, respondent.
   Hardin, P. J.:

After the Circuit Court of the United States had appointed a receiver of the railroad corporation several applications were made for authority to issue certificates. The certificates were issued in pursuance of the orders given by the Circuit Court of the United States, and indorsed upon the several certificates was the language of the order authorizing their issuance. It must, therefore, be assumed that each holder of a certificate or certificates had notice of the authority of the receiver to issue the same, and of the court having jurisdiction in the premises of the property sought to be bound by the certificates so issued by the receiver.

In the order of June 8, 1894, appointing the receiver, the Circuit Court of the United States for the northern district of Hew York inserted a provision that “ generally all and every person or persons claiming under, by or through the defendant, or in any other way, are hereby enjoined and restrained from interfering with or in any way disposing of the said property of the defendant herein, except to turn over, transfer and convey the same to the said receiver.”

That order seems to remain in force and virtue.

October 31, 1891, the defendant railroad had issued its first mortgage bonds in the sum of $150,000, and to secure the payment of the same had executed to the Farmers’ Loan and Trust Company, as trustee, a certain mortgage in the usual form. On July 19, 1894, upon the application of the receiver, an order was made authorizing him to issue and sell certificates to the amount of $6,000, and to apply the proceeds as directed in the order made by the Circuit Court. The receiver issued certificates to the amount of nearly $6,000, and one of them was issued to the plaintiff for past due wages as an employee, and he also acquired another. On July fifth the receiver made another application to the Circuit Court of the United States for leave to issue certificates and a second order was made authorizing a second issue of the certificates to the amount of $15,000. The receiver has not funds in his hands with which to pay the principal due on the certificates, although he has paid interest thereon to a considerable extent. The receiver has never received any commissions for his services and theré has been no settlement of his accounts had or taken by or before the court appointing him, or in any other manner. There seem to be outstanding debts against the railroad for some $225,000. The plaintiff and some other owners of the certificates seek to enforce the liens created by the certificates in this action, and in the complaint pray to have the property sold to the end that the several certificates that have been issued may be satisfied.

In the orders made by the Circuit Court of the United States is found the following language : Each and all of such certificates so to be issued pursuant to this order by the said receiver, with interest thereon until paid in full, to be a lien and charge on all the property of the defendant, the Dansville and Mount Morris Railroad Company, in the possession of the receiver prior to the lien of the mortgage executed to the Farmers’ Loan and Trust Company, dated November 1, 1891, and mentioned in the bill of complaint herein, and prior to the lien of any judgment now .of record against the defendant, and that in a final order or decree to be made herein, before the discharge of the receiver, provision is to be made for the payment of any such certificates that may be outstanding.” It seems that when the persons took the certificates so issued by the receiver they consented to the terms and tenor of the orders under which they were issued.

In Turner v. Peoria & S. R. R. Co. (95 Ill. 134, 147) is found the following language: “ All persons dealing in such securities must know that payment can only be coerced by application to the court having the control of the trust property for an order upon its acting officer.” Impliedly the parties who received the certificates assented to the provisions of the orders and to the mode of enforcement of payment of the certificates mentioned in the orders.

The right of a court having possession of an insolvent corporation’s property to issue certificates and to declare the liens thereof precedent to the existing liens has been asserted after considerable conflict in the courts, and is now maintained in the Federal courts (Miltenberger v. Logansport Railway Company, 106 U. S. 286; Union Trust Co. v. Illinois Midland Railway Company, 117 id. 434), and it has been recognized by the Court of Appeals in this State. (Raht v. Attrill, 106 N. Y. 423.)

The Circuit Court of the United States, having taken possession of the property, holds the same subject to its final directions and administration in respect thereto, and in making sale and realizing the proceeds thereof, that court has plenary power to distribute the funds arising from such sale, and that power ought not to be interfered with at the instance of certificate holders who have taken their certificates subject to such administration.

In Buck v. Colbath (3 Wall. 341) it is said that “ whenever property has been seized by an officer of the court, by virtue of its process, tile property is to be considered as in the custody of the court, and under its control for the time being; and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises. * * * A departure from this rule would lead to the utmost confusion, and to endless strife between courts of concurrent jurisdiction deriving their powers from the same source; but how much more disastrous would be the consequences of such a course, in the conflict of jurisdiction between courts whose powers are derived from entirely different sources, while their jurisdiction is concurrent as to the parties and the subject-matter of the suit.”

In volume 12 American and English Encyclopaedia of Law (p. 292) it is said : “ Where two courts have concurrent jurisdiction, whichever court first acquires jurisdiction of a cause will retain it throughout, if able to determine the whole controversy.” In a note at page 293 it is said : The rule that among courts of concurrent jurisdiction, that one which first obtains jurisdiction of a case has the exclusive right to decide every question arising in the case, is subject to some limitations.”

The general powers of a court of equity were asserted in Kershaw v. Thompson (4 Johns. Ch. 609), and it was said that the court has power “ to apply the remedy in the case * * * co-extensive with its jurisdiction over the subject-matter.” A similar doctrine was asserted in Miller v. McCan (7 Paige, 451).

In Obar v. Gallagher (93 U. S. 199) it was held: “ A court which has acquired rightful jurisdiction of the parties and subject-matter will retain it for all purposes within the general scope of the equities to be enforced.”

The expenses of the administration are to be considered when application is made for the settlement of the receiver’s accounts- and for the distribution of the fund which arises by reason of the sale of the property which the court has-committed to his possession.

In Raht v. Attrill (106 N. Y. 434) it was said : “ The act of the court in taking charge of property through a receiver is attended with certain necessary expenses of its care and custody; and it has, become the settled rule that expenses of realization, and also certain expenses, which are called expenses of preservation, may be incurred under the order of the court on the credit of the property, and it, follows, from necessity, in order to the effectual administration of' the trust assumed by the court, that these expenses should be paid out of the income, or, when necessary, out of the corpus of the-property before distribution, or before the court passes over the-property to those adjudged to be entitled.”

We have found nothing in the multitudinous facts stated in the complaint and in the answer, which were admitted at the trial, which warrants us in reaching a conclusion that the Circuit Court of the United States has not ample authority to administer upon the property which it has passed into the hands of the receiver, and to-distribute it in accordance with the principles of equity, which will govern that court at the time of the final distribution of the fund arising from any sale of the property which shall be made by the-receiver, in virtue of the instructions and directions of that court and we see no occasion for this State court to take possession of the property by means of another receiver, with a view of enforcing the rights of the several certificate holders. That court has jurisdiction of the subject-matter of the action, and of all the lienors, including-those that did assent to the issuance of the certificates, as well as, those who did not assent. We, therefore, see no occasion for granting that part of the prayer of the plaintiff’s complaint, which is to-the effect that the property be sold under the direction of this, court, and the proceeds of such sale applied to the payment of the receiver’s certificates hereinbefore described.”

If the plaintiff and the other certificate holders are entitled to be paid according to the theory of the plaintiff, the presumption is that the Circuit Court of the United States when it finally distributes the funds that come from the property it has placed in the hands of its receiver, will so ad judge.

The plaintiff and the other certificate holders should, therefore, ■seek their remedies through the action of the Circuit Court of the United States, as that court has possession, by its receiver, of the property sought to be reached by the plaintiff as a certificate holder. We think the conclusion of the Special Term should be sustained.

All concurred; Follett, J., not sitting.

Judgment affirmed, with costs.  