Bankers Trust Company v. . Denver Tramway Company
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 27, 1920, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure. Plaintiff is trustee under a mortgage or deed of trust executed by defendant’s predecessor and assumed, ratified and confirmed by defendant.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 27, 1920, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure. Plaintiff is trustee under a mortgage or deed of trust executed by defendant’s predecessor and assumed, ratified and confirmed by defendant. By its terms it was agreed that certain fixed percentages “ of the principal of the bonds issued hereunder and then outstanding ” should be paid annually to plaintiff as a sinking fund for the redemption of bonds…
1Per curiam
We think the meaning of this mortgage and of the provision for a sinking fund is correctly stated in the opinion of Mr. Justice Smith, dissenting, at the Appellate Division.
The bonds were not “ issued and outstanding ” while retained by the mortgagor or its depositary. They did not get that quality until some one received and held them as enforcible obligations (Zimmermann v. Timmer mann, 193 N. Y. 486; Eastern Electric Cable Co. v. Great Western Mfg. Co., 164 Mass. 274). We think it was not required that the holder should have all the rights of ownership. The bonds would not cease to be…
2Cases cited3 opinions
- Duncomb v. . N.Y., H. N.R.R. Co.New York Court of Appeals · 1881
- Zimmermann v. . TimmermannNew York Court of Appeals · 1908
- Eastern Electric Cable Co. v. Great Western Manufacturing Co.Massachusetts Supreme Judicial Court · 1895
3Cited by2 opinions
- Winkelman v. General Motors CorporationDistrict Court, S.D. New York · 1942
- Cincinnati Gas & Electric Co. v. New York Trust Co.Appellate Division of the Supreme Court of the State of New York · 1926