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PETER G. TREVES v. NEW YORK CENTRAL RAILROAD COMPANY ET AL. (10/17/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 17, 1968

PETER G. TREVES, ON BEHALF OF HIMSELF AND ALL OTHER BONDHOLDERS OF MOHAWK AND MALONE BONDS, SIMILARLY SITUATED, APPELLANT,
v.
NEW YORK CENTRAL RAILROAD COMPANY ET AL., RESPONDENTS

Concur -- Capozzoli, Tilzer and McGivern, JJ.; Eager, J., concurs.

Order entered May 20, 1968, unanimously affirmed, with $50 costs and disbursements to respondents. In concur in the affirmance as I conclude that the plaintiff's causes of action are framed to enforce causes of action primarily vested in the trustees for breach of obligations of the first and second bonds and mortgages of the particular railroad company and that the plaintiff's noncompliance with the "no-action clauses" of the mortgages bars plaintiff's suit. In view of this conclusion, plaintiff would not be precluded by the dismissal of this action from maintaining a declaratory judgment action for a declaration as to the rights and obligations of the defendant railroad company and the trustees with respect to proceeds of sale of premises released from liens of the mortgages, nor would it bar an action by bondholders to recover for willful misconduct, if any, of the trustees.

Eager, J., concurs in the following memorandum.

19681017

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