UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
supplemental opinion: February 2, 1945.
PRESIDENT AND DIRECTORS OF MANHATTAN CO.
KELBY ET AL. (THREE CASES); IN RE PRUDENCE BONDS CORPORATION (TWO CASES); PRUDENCE REALIZATION CORPORATION V. PRESIDENT AND DIRECTORS OF MANHATTAN CO. (TWO CASES).
FRANK, Circuit Judge.
In our previous opinion we granted permission to file further briefs on the question of whether, under our construction of the instrument, there would be any decrease in the surcharge of the bank. Such briefs have now been filed.
The bank argues that it is entitled to a certain reduction approximating $30,000, on the ground that, although at the time of certain releases made September 30, 1931, there was a deficit in mortgage collateral, yet, after allocating excess mortgage collateral matched against October 1, 1931 maturity to the April 1, 1932 maturity, there was excess cash collateral which could have been released.
This contention is grounded on the assumption that mortgage collateral allocated to October 1, 1931 maturity could be applied to the April 1, 1932 maturity. The instrument provides that, after withdrawal, there must remain sufficient mortgage collateral "maturing during the six-months' period immediately preceding or the three months' period immediately following and including the maturity date," of the Prudence bonds, to meet those maturities. If the date from which maturity is to be measured were not to be included, then six months prior to April 1 would be October 1. It is true that the date from which maturity is to be measured would not be included in the computation if nothing in the agreement indicated otherwise. But, in the instant case, the agreement specifically provides for "including the maturity date," in making the computation. Thus, the sixmonths' period preceding April 1, 1932 does not include October 1, 1931. Therefore the bonds allocated to the April 1, 1932 maturity cannot be allocated to the October 1, 1931 maturity. Accordingly, the bank's contention fails.
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