That the defendant, the Erie Railway Company, has appeared by its attorneys, and has answered, admitting the truth of the allegations made in the amended and supplemental complaint; that the following defendants have also appeared by their respective attorneys, namely: William H. Gurney, Solomon Scheu, Russell H. Heywood, The Farmers' and Mechanics' National Bank of Buffalo, Lydia Page, George W. Randall, Austin Thomas, Orrin O. Olmstead, Eliza M. Page, as administratrix of Howard M. Page, deceased; James Dwyer, John Siemon, Abram Dyer, Archibald H. Gates, Patrick Whalen, James H. Bertholf, Charles B. Germain, guardian ad litem of William Zaggel; Charles Zaggel, George Talbot, Aaron Smith;

That none of the said defendants have appeared or answered, except as aforesaid, and no other defendant has appeared herein; that all the defendants appearing herein, have waived service of all notices and papers herein, except the defendants the Erie Railway Company, George Talbot, Charles Zaggel, William Zaggel and Solomon Scheu, and that none of the defendants are absentees or persons of unsound mind, and the defendant William Zaggel being an infant, and the only infant among the said defendants, has appeared by his guardian ad litem, duly appointed, but has not answered or demurred to the complaint herein;

That the plaintiff is a corporation duly created and organized under the laws of the State of New York, with full power and authority, among other things, to receive the conveyance made to the plaintiff, in trust, by way of mortgage, on the 4th day of February, 1874, as in the complaint in this action particularly set forth;

That the defendant, the Erie Railway Company, is a corporation duly created and organized under the laws of this State, under and by virtue of an act of the Legislature, passed April 4, 1860, and sundry acts supplementary thereto, from which said act, as well as from the general laws of this State in relation to railroad companies, the said Erie Railway Company derives and possesses its franchises, powers and privileges;

That by an act of the Legislature of this State, passed April 24th, 1832, entitled "An Act to incorporate the New York & Erie Railroad Company," a corporation was created under the name of the New York & Erie Railroad Company, for the purpose of constructing, owning and operating a line of railroad for the carriage of freight and passengers between the City of New York and Lake Erie, in this State;

That by the said act and other supplementary acts of the Legislature of this State, and by certain statute laws of the State of Pennsylvania, the said New York & Erie Railroad Company was authorized to construct and operate a certain part of its line of railroad, namely, about forty-two and one-half miles thereof, through the Counties of Pike and Susquehanna, in the said State of Pennsylvania;

That the said corporation subsequently lawfully acquired certain franchises, privileges, powers and certain leasehold estates and interests in the State of New Jersey ;

That afterwards the said New York & Erie Railroad Company created at various dates, by way of mortgage, five separate liens upon its property and franchises, each for the security of certain bonds of the said company therein particularly described, which said mortgages were and are as follows, that is to say:

A mortgage, known as the first mortgage, to secure a series of bonds, whereof there are $2,483,000 of the principal sum thereof now outstanding and unpaid, which become payable on the first day of May, 1897;

A mortgage, known as the second mortgage, to secure a series of bonds, whereof, there are $2,174,000 of the principal sum thereof now outstanding, and which are payable September 1, 1879;

A mortgage, known as the third mortgage, to secure a series of bonds, whereof there are now outstanding and unpaid $4,852,000 of the principal sum thereof, which become payable March 1st, 1883; A mortgage, known as the fourth mortgage, to secure a series of bonds, whereof there are now outstanding and unpaid $2,937,000 of the principal sum thereof, which become payable October 1, 1880; A mortgage, known as the fifth mortgage, to secure a certain other series of bonds, whereof there are

now outstanding $709,500 of the principal sum thereof, and which become payable on the first day of June, 1888; the interest upon the said several series of bonds having been paid from time to time as such interest became due and payable;

That the said New York & Erie Railroad Company operated its road until some time in the year 1859, when the said company became insolvent, and that such proceedings were thereupon and thereafter had, that all and singular the property and franchises of the said company were foreclosed and sold, and the defendant in this action, the said Erie Railway Company, acquired, succeeded to, and became lawfully possessed of the said property and franchises, including all the property, rights, privileges and franchises of the said New York & Erie Railroad Company in the said States of New Jersey and Pennsylvania respectively, title to all of which last-mentioned rights, privileges and franchises was subsequently confirmed in and to the said defendant The Erie Railway Company, by acts of the Legislatures of the said States of New Jersey and Pennsylvania respectively;

That afterwards, and on or about the first day of September, 1870, the said defendant, the Frie Railway Company, being so possessed as aforesaid of all the aforesaid property, rights, privileges and franchises, and being thereto duly authorized by law, executed and delivered to the plaintiffs in this action a certain indenture, wherein and whereby the said defendant company conveyed to the plaintiffs in trust, by way of mortgage, all and singular the railway of the said company, from and including Piermont, on the Hudson River, to and including the final terminus of the said railway on Lake Erie, and the railway known as the Newburgh Branch, from Newburgh to the main line; and also all that part of the railway designated as the Buffalo Branch of the Erie Railway, extending from Hornellsville to Attica, in the State of New York; and also all other railways belonging to the said company, in the States of New York, Pennsylvania and New Jersey, or any of them, together with all the lands, tracks, lines, rails, bridges, ways, buildings, piers, wharves, structures, erections, fences, walls, fixtures, franchises, privileges and rights of the said company; and also all the locomotives, engines, tenders, cars, carriages, tools, machinery, manufactured or unmanufactured materials, coal, wood, and supplies of every kind belonging or appertaining to the said company, and all tolls, incomes, issues, profits arising out of the said property, and all rights to receive or recover the same; also all the estate, right, title and interest, terms and remainder of terms, franchises, 'privileges, and rights of action of whatsoever name or nature, in law or in equity, conveyed or assigned unto the New York & Erie Railroad Company, or unto the Erie Railway Company, by the Union Railroad Company, the Buffalo, New York & Erie Railroad Company, by the Buffalo, Bradford & Pittsburgh Railroad Company, by the Rochester & Genesee Valley Railroad Company, and by the Long Dock Company; which said indenture was afterwards duly recorded in each one of the several counties in which the mortgaged premises or some part thereof were situate;

That the said mortgage was made to secure certain bonds of the said Erie Railway Company in the said indenture particularly set forth and described, whereof the said company issued at different dates, bonds to the amount of $16,656,000 gold in the aggregate, including those bonds in the said mortgage called convertible bonds, and bearing date September 1, 1865, all of which bonds are now outstanding and secured by the said mortgage; and

That on the 1st day of November, 1877, there was interest accrued, due and payable upon the said bonds to the amount of $2,573,245, gold, and that since that date to the date hereof, there has further accrued of said interest $3,240;

That afterwards and on the 4th day of February, 1874, the said defendant the Erie Railway Company, being thereto duly authorized by law, executed and delivered to the plaintiff, as trustee, a certain other trust deed or mortgage, the same being the mortgage to foreclose which this action is brought, wherein and whereby said defendant company did convey to the plaintiff, as trustee, for the uses and purposes in the said mortgage specified, all and singular the railways of the said company, from and including Piermont, on the Hudson River, to and including the final terminus of the said rail

way on Lake Erie, and the railway, known as the Newburgh Branch, from Newburgh to the main line; and also all that part of the railway designated as the Buffalo Branch of the Erie Railway, extending from Hornellsville to Attica, in the State of New York; and also all other railways belonging to the company in the States of New York, Pennsylvania and New Jersey, or any of them, together with all the lands, tracks, lines, rails, bridges, ways, buildings, piers, wharves, structures, erections, fences, walls, fixtures, franchises, privileges and rights of the said company, and also all the locomotives, engines, tenders, cars, carriages, tools, machinery, manufactured or unmanufactured materials, coal, wood, and supplies of every kind belonging or appertaining to the said company; and all tolls, income, issues and profits arising out of said property, and all rights to receive or recover the same; also, all the estate, right, title and interest, terms and remainder of terms, franchises, privileges and rights of action, of whatsoever name or nature in law or in equity, conveyed or assigned unto the New York and Erie Railroad Company, or unto the Erie Railway Company, by the Union Railroad Company, by the Buffalo, New York and Erie Railroad Company, by the Buffalo, Bradford and Pittsburgh Railroad Company, by the Rochester and Genesee Valley Railroad Company, and by the Long Dock Company:

That the said mortgage to the plaintiff, of February 4, 1874, last mentioned, was within a reasonable time after the date thereof, and before the commencement of this action, duly recorded in the County Clerk's office of each of the several counties in this State wherein the said mortgaged premises or parts thereof were and are situated, that is to say, in the counties of New York, Chemung, Wyoming, Steuben, Genesee, Broome, Livingston, Cattaraugus, Allegany, Chautauqua, Tioga, Delaware, Orange, Rockland, Sullivan, Erie, Niagara, Monroe ;

That the said mortgage was also duly recorded in the proper offices in the State of New Jersey, in which State a part of the mortgaged premises and franchises were and are situate, as required by the laws of the said State; that is to say, in the counties of Hudson, Bergen and Passaic;

That the said mortgage was also duly recorded in the proper offices in the State of Pennsylvania, in which State a part of the mortgaged premises and franchises were and are situate, as required by the laws of the said State; that is to say, in the counties of Pike and Susquehanna;

That the said mortgage was executed and delivered to the plaintiff, as trustee, to secure the payment of certain bonds of the defendant the Erie Railway Company, whereof the following bonds, secured by the said mortgage, and no more, are outstanding, due and unpaid, that is to say: bonds of the said company to the amount in the aggregate of $10,000,000, dated January 1, 1873, which bonds were 11,000 in number, 9,000 thereof being for the sum of $1,000 each, and 2,000 for the sum of $500 each; all of which bonds were and are payable in gold on the first day of January, 1903, and all of which were and are now outstanding and unpaid;

That each of the said bonds had and has interest warrants or coupons attached thereto represent ing interest to become due on the said bonds each three months during the currency thereof;

That of the said interest warrants, the following became due and payable at the dates hereinafter mentioned, and still remain due and unpaid at the date hereof, with interest thereon as follows, that is to say:

Interest on same to Nov. 1, 1877 . . .

175,000 00

1,020 83 amounting in the aggregate to $1,898,020.80, and that since the said 1st day of November to the date hereof, further interest has accrued on the said past due interest warrants to the amount of $2,384;

Also certain other bonds of the said company, amounting in the aggregate to the sum of $15,000,000, dated the 2d day of March, 1874, payable in gold on the 2d day of March, 1894, which bonds were 15,000 in number, and for the sum of $1,000 each;

That each of the said bonds has and had interest warrants or coupons attached thereto, representing interests to become due on the said bonds each six months during the currency thereof;

That of the said interest warrants the following became due and payable at the dates hereinafter mentioned, and still remain due and unpaid at the date hereof, with interest thereon as follows, that is to say:

amounting in the aggregate to $2,885,312.50, and that since the said 1st day of November to the date hereof, further interest has accrued on the said past due interest warrants to the amount of $3,572.90.

That payment of the said interest warrants upon said two last mentioned series of bonds, was duly demanded of the said defendant company, at or about the date when the same became due, and was refused by the said company, and the said company has ever since and still does neglect and refuse to pay the same or any part thereof, and more than six months has elapsed since such default;

That by reason of such default, the principal sum of the said bonds, together with the aforesaid interest thereon, has become and now is due and payable;

That at the date hereof there is due to the plaintiff upon the said bonds, secured to the plaintiff by the said mortgage of the defendant, the Erie Railway Company, to the plaintiff, of February 4, 1874, principal amounting, in the aggregate, to the sum of $25,000,000; interest amounting in the aggregate to $4,789,290.20, and that the total amount so due for principal and interest is $29,789,290.20. That no proceedings at law have been had or taken for the recovery of the money secured by the aforesaid mortgage to the plaintiff, dated February 4, 1874;

That the defendant the Erie Railway Company is insolvent, as alleged in the complaint;

That at the time of the commencement of this action, by an order of this Court, dated the 15th day of June, 1875, Hon. Hugh J. Jewett was duly appointed Receiver in this action, of all and singular the premises mortgaged to the plaintiff, trustee, as aforesaid; that he was also duly appointed Receiver of

the mortgaged premises, in the auxiliary actions in the States of New Jersey and Pennsylvania here. inafter referred to, at or about the date of the commencement thereof, respectively, and that he has since continued to be and still is such Receiver in each of such actions.

That all claims and judgments in favor of the said defendants, James H. Bertholf, Elizabeth J. Blair, as administratrix of Nathaniel B. Blair, deceased; James Dwyer, Abram Dyer, The Farmers' and Mechanics' National Bank of Buffalo, William H. Gurney, Archibald H. Gates, Russell H. Heywood, John Siemon, Alexander Muir, as administrator of Annie Roe, deceased; Orrin O. Olmstead, Lydia Page, Eliza M. Page, as administratrix of Howard M. Page, deceased; George W. Randall, Nicholas Rassell, Aaron Smith, Solomon Scheu, George Talbot, Austin Thomas, Patrick Whalen, Charles Zaggel and William Zaggel, if any, they or either of them have, are inferior in lien to that of the said mortgage to the plaintiff, of February 4, 1874, and that all indebtedness by the said mortgage should first be paid, before any of the proceeds of the sale of the said mortgaged property can be applied to the payment of the said claims or judgments, or either of them;

That the property of the said Erie Railway Company, as hereinbefore stated, is held and bound for the payment of the indebtedness secured by the said several mortgages thereon, in the following order, that is to say:

First.-For the payment of the debt secured by the said first mortgage, payable May 1, 1892, to the extent of so much of the said property as is embraced and described therein;

Second. For the payment of the debt secured by the said second mortgage, payable September 1, 1879, to the extent of so much of the said property as is embraced and described therein;

Third. For the payment of the debt secured by the said third mortgage, payable March 1, 1883, to

the extent of so much of the said property as is embraced and described therein;

Fourth. For the payment of the debt secured by the said fourth moatgage, payable October 1, 1880,

to the extent of so much of the said property as is embraced and described therein;

Fifth.—For the payment of the debt secured by the said fifth mortgage, payable June 1, 1888, to the extent of so much of the said property as is embraced and described therein;

Sixth.--For the payment of the debt secured by the said mortgage to the plaintiff, dated September 1, 1870;

Seventh. For the payment of the debt secured by the said mortgage to the plaintiff of February 4, 1874, to foreclose which this action is brought;

That the several leasehold estates and interests mortgaged to the plaintiff, in and by the mortgage last aforesaid, a general description whereof is contained in the bill of complaint in this action, and a more particular description whereof is contained in the inventory made by the Receiver herein, under the order of this Court, and now on file, were, at the date of said mortgage, and now are subject to certain encumbrances existing thereon at the date of said mortgage, and also to certain rentals payable by the lessee the said Erie Railway Company, in the manner and form provided in and by the respective leases under and in pursuance of which such estates and interests were respectively acquired; that some of these leasehold estates and interest, constitute a valuable part of the mortgaged premises, and that others are burthensome, unprofitable and worthless;

That an action is now pending in the Court of Chancery of the State of New Jersey, in which the plaintiff, trustee in this action, is plaintiff, and the defendant the Erie Railway Company is defendant for a foreclosure of the said mortgage to the plaintiffs of February 4, 1874, in respect of that part of the property and franchises embraced in the said mortgage situate in the State of New Jersey:

That the said action is brought, and is being prosecuted, as auxiliary to this action and in aid thereof; That there is now pending in the Court of Common Pleas for the county of Pike, in the State of Pennsylvania, an action in which the plaintiff in this action, trustee; is plaintiff, and the defendant the Erie Railway Company is defendant, for the foreclosure of the said last mentioned mortgage to the plaintiff trustee in respect of that part of the property and franchises embraced therein situate in the said