(2) to run and operate the roads and lines of said Erie Railway Company, or by it possessed at the date of his receivership, or covered by either of said mortgages, and collect the tolls, income, and profits of the same; (3) to preserve in possession, and keep in good condition and repair, said road and property, and protect the title of the same, and that he pay the interest as it becomes due on the bonds secured by mortgages prior to said fifth mortgage; (4) to employ and pay such persons as he may find reasonably necessary and most useful in and about the discharge of the duties of a Receiver hereunder, and to dismiss the same; (5) to make and enforce appropriate contracts for limited periods, which shall be adapted to promote the efficient and economical operation of said roads; (6) to adjust and pay taxes, assessments, charges, rents, and ticket and freight balances, and other expenses in and about the proper operation of said roads, and the protection of the mortgaged property; (7) to take and institute, as he may deem needful, whatever suits or proceedings he may, by counsel, be reasonably advised to be necessary and proper in the appropriate discharge of his duty as Receiver, and to defend and resist any suit or proceedings which he shall be so advised and shall believe would otherwise be prejudicial to the property, interests, or franchises committed to his charge; (8) to do such acts and make such payments as may be necessary to preserve the corporate existence of the Erie Railway Company; and, generally (9), to do and cause to be done, in a lawful manner, as Receiver, whatever may be reasonable, needful, and appropriate in and about the care, protection, and preservation, in an economical manner, of the rights, interests, or franchises on which said mortgages, or either of them, are a lien, or the discharge of his duty as Receiver may render needful; but nothing in this general authority contained shall authorize said Receiver to do any act which the Erie Railway Company might not, but for its insolvency, have lawfully done, except as herein specifically authorized, nor to pay for supplies, or material, or wages due or procured, or any other debt due more than four months before the making of this order, nor to ratify or give validity to any corrupt or illegal contract or undertaking, nor to change the priority of any claim or lien upon, or divert the income of, the mortgaged premises, for the benefit of any junior claimant. III. That said Receiver file a bond (conditioned for the faithful discharge of his duty as Receiver) in the sum of $500,000, with sureties, and in form to be approved by a Justice of this Court, and that upon the filing of such bond he be deemed fully qualified as a Receiver hereunder. IV.—That as soon as practicable, after entering upon the discharge of his duty, the Receiver file an inventory, under oath, giving a correct and adequate description, as he may be able, of all the property, rights, interests, and franchises mentioned in or covered by said mortgages, or either of them, of which he is hereby appointed Receiver; but the real estate may be described in a general manner only. V. The Receiver shall keep such adequate records of his acts, and especially such full, clear, and complete accounts of all moneys by him received and paid out, and from what source and for what purpose, that the propriety and legality of his action in these regards may at all times appear, and he shall preserve proper vouchers for all payments. All money on hand, not needed for present use, shall be kept in one or more banks or trust companies, of approved credit, in the City of New York, to his credit as Receiver, and all payments shall be made, so far as reasonably practicable, by, and all money be drawn thence by or upon check, in his name as Receiver. VI.—And it appearing to the Court that the duties of the Receiver must be so complicated, and his payments must be so numerous and intricate, and so difficult to be explained after the elapsing of a considerable time, when some of his agents may have left, and that a prompt judgment of the Court thereon is expedient and just to said Receiver, and to the parties in interest, it is further ordered: (1.) That James C. Spencer, Esquire, Counselor-at Law, be and he is hereby appointed a referee, to pass, decide, and report upon the accounts and vouchers and doings of the Receiver, which may be rendered to be passed before him, and to take testimony and report upon any other question or matter which under this order may be brought before such referee. (2.) That in case of any question or matter within the authority of the Receiver, under this order, to decide or take action upon, as to which he shall desire information under oath, he may offer to have the same referred to said referee; and in case the other parties in interest shall so consent, testimony may be taken before such referee, who may report the facts with his views to the Receiver, who may use any testimony so taken, and such report, in making his decision; but the views of such referee and such report shall in no way bind such Receiver. (3.) Said Receiver may at any time and from time to time, on eight days' notice to the parties hereto, or such less notice as may be accepted of an intention so to do, present his accounts and vouchers for any particular period not less than one month, to be in the notice mentioned, to such referee, at a time and place to be in said notice stated, for examination, adjustment and allowance; and said referee shall proceed in their examination, and, in regard to proof affecting their correctness, according to the practice in cases of other similar accounts, and he shall proceed with all dispatch consistent with giving those objecting a fair opportunity to be heard. All objections to such accounts shall be made before such referee in writing, with reasonable precision and within such reasonable time as the referee shall fix, and shall, in a general way, state the grounds of the objection to any item. After hearing the parties, any proper evidence offered, and the Receiver's answer to any objections, the referee shall speedily report to this Court the facts proved, and his opinion as to the items disputed; and any parties so objecting to such account may take exceptions in writing to any portion (referring to items so objected to) of said report, and he shall state the grounds of his excep tion. Uuless in special cases where, in the opinion of the referee, an original voucher ought to be brought before this Court, the original vouchers and papers may be returned to the Receiver for his protection, and only copies of those disputed may be attached to the report; but the report shall clearly show the period covered by such accounting. (4.) And all vouchers and payments not so in writing objected and excepted to, as well as all the actions of said Receiver so brought before said referee, and not disputed there, and the decision and report of said referee so far as not excepted to by any party, or by the Receiver, shall be deemed final and conclusive upon all parties, and upon the Receiver; and such accounts, vouchers, and payments shall not be liable to be again called in question. VII The Receiver is at liberty at any time to apply to this Court for further instructions and authority in and about the discharge of his duty. (A copy.) No. 31. WM. WALSH, Clerk. At a Special Term of the Supreme Court of the State of New York, held at the Present-Hon. CHARLES DONOHUE, Justice. J. C. BANCROFT DAVIS, Trustee, against THE ERIE RAILWAY COMPANY, THE FARMERS' LOAN AND TRUST COMPANY, and JAMES BROWN. On reading and filing consent to the entry of this order, signed by the attorneys for the respective parties who have appeared therein, and on motion of Shipman, Barlow, Larocque & MacFarland, attorneys for the defendant the Erie Railway Company, It is ordered that this action be, and the same is hereby discontinued, without costs to any of the parties as against the others. (A copy.) HUBERT O. THOMPSON, Clerk. NEW YORK SUPREME COURT. No. 32. THE PEOPLE OF THE STATE OF NEW YORK against THE ERIE RAILWAY CCMPANY, HUGH J, JEWETT, THOMAS A. Scott, On reading and filing the affidavit of D. B. Eaton, and on motion of on behalf of The Farmers' Loan and Trust Company; and after hearing Henry A. Tailer, attorney for J. C. B. Davis, and Mr. Eaton in person, and W. W. MacFarland, as counsel for the Receiver Jewett, and Mr. Larocque for the Erie Railway Company, It is Ordered, That James C. Spencer, as Referee in the aforesaid foreclosure suits against The Erie Railway Company and others, in one of which J. C. B. Davis, as Trustee, is plaintiff, and in the other of which The Farmers' Loan and Trust Company, as Trustee, is plaintiff, do examine into the facts affecting, and report to this Court the form of a suitable order to be entered concerning the accounts and doings of H. J. Jewett, the Receiver in the first above entitled suit, so far as he has not already examined or reported upon the same in his examinations in the said foreclosure suits. That such order be in such form as to cover the question of the final accounting and discharge of the Receiver and the release of his bondsmen in the first above entitled suit, it being understood that the same is about to be discontinued. It is further Ordered, That said Referee examine as to, and separately report what costs and allowances are to be paid by the Receiver, if any, and also what disbursements, compensation and expenses will be reasonable to be taxed or] allowed to each of the defendants, as Trustees or otherwise, who have appeared in the first above entitled action, and also the charge of the Referee for services under this order. (A copy.) WM. WALSH, Clerk. No. 33. At a Special Term of the Supreme Court of the State of New York, held at the Present--Hon. CHARLES DANIELS, Justice THE ERIE RAILWAY COMPANY, and JAMES BROWN and J. C. BAN- J. C. BANCROFT DAVIS, Trustee, &c., Defendants. Plaintiff, agst. THE ERIE RAILWAY COMPANY, THE FARMERS' LOAN & TRUST COM- Defendants. On reading and filing the petition of Hugh J. Jewett, Receiver in the foregoing entitled actions, verified on the 2nd day of July instant, and on motion of William W. MacFarland, attorney for said petitioner, all the parties consenting. It is hereby ordered, that the Clerk of this Court is hereby authorized and directed to deliver into the custody of J. C. Spencer, Referee of this Court, in the above-entitled actions, all the accounts of the said Hugh J. Jewett, Receiver, and all proofs relating to the same, that have been heretofore examined and passed upon by said Referee, and reported upon to this Court, by said Referee, in the two last of the above-entitled actions, and which are now on file in the office of said Clerk. And it is further ordered that James C. Spencer, the said Referee, is hereby authorized to take the custody and safely keep the said accounts and proofs, allowing the said Receiver and his counsel, the Attorney-General for the plaintiff and his associate counsel, and the attorneys and counsel for other parties in the first above-entitled action, to examine and use the same before him as Referee in the accounting of said Receiver provided for in the order of this Court entered in said first above entitled action, May 20, 1878. And the said Referee is also authorized to mark said accounts and proofs for identification in the last-named accounting, so that he can intelligibly refer to the same as exhibits in his report to this Court, of said last named accountings, and after the said accounting has been concluded the said Referee shall return said accounts and proofs to the custody of the Clerk of this Court, who shall endorse and file the same, or such portion of the same, in the first of the above entitled actions, that shall appear to have been marked as exhibits by said Referee in said last-named accounting. And such of said accounts and proofs, as are so marked as exhibits by the Referee, in said last named accounting, and so filed by the Clerk shall be deemed to be exhibits in the said accounting in the first of the above-entitled actions, as if they were originally made and filed in this Court in the said first of the above-entitled actions. (A copy.) HENRY A. GUMBLETON. No. 34. Copies of leases and contracts, for the use, occupation, and management of railroads and other property, by the Erie Railway Company, introduced in evidence under, and specifically described in, Exhibits Nos. 30 and 31, preceding page 57 of Appendix. (Transmitted to Court with Report.) "EXHIBIT M." Schedule of property claimed by the Attorney-General before the Referee as having been acquired, held, or disposed of by Hugh J. Jewett, Receiver, and not covered by or subject to the mortgage to the Farmers' Loan and Trust Company, now foreclosed, and not subject to any rights or equities of said Trust Company, the purchasers at the foreclosure sale, or their assigns; which claim of said Attorney-General is denied by the respective attorneys and counsel for the Trust Company and the Erie Company. I. Real Estate and other property held in fee, or as leasehold, and acquired by the Erie Railway Company before the execution and delivery of the mortgage in question, namely, March 15, 1874. A.-Real Estate in the City of New York: 1. The premises conveyed to the Erie Railway Company by Gould and Fisk, lying between 23d and 24th Streets and Eighth and Ninth Avenues, which includes all the premises known as "The Grand Opera House property," a full description of the same appearing upon Exhibits Nos. 8 and 11, and upon a map introduced in evidence and marked Schedule A of "Exhibit 11," portions of which are held as leasehold, and other portions held in fee. |