BARBER ASPHALT PAVING CO. v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.

BARBER ASPHALT PAVING CO. v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO. (Circuit Court, S. D. New York. March 31, 1910.) Suits by the Barber Asphalt Paving Company and by the Union .Trust Company of New York against the Forty-Second Street, Manhattanville & St.. Nicholas Avenue Railway Company; by the Pennsylvania Steel Company and another against the New York City Railway Company and the Metropolitan Street Railway Company, and by the Morton Trust Company against the Metropolitan Street Railway Company and others.' On petition by the receiver of the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company for an order directing the Metropolitan Street Railway Company, and Adrian H. Joline and Douglas Robinson, as its receivers, to recognize the rights of the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company to maintain and operate a street surface railway through Manhattan, on Amsterdam avenue, between Seventy-First street and 125th street, and to use the present road and equipment in common with the Metropolitan Street Railway Company or its receivers and the Ninth Avenue Railway Company, or by joint operation with them, or either or any of them. Petition dismissed, without prejudice, with leave granted to the receivers to institute suit in any court to establish the respective rights of the parties. Kellogg & Rose, for Barber Asphalt Paving Co. Miller, King, Dane & Trafford, for Union Trust Co. Byrne & Cutcheon, for Pennsylvania Steel Co. and another. Jas. D. Quackenbush, for New York City Ry. Co. J. Parker Kirlin, for Metropolitan St. Ry. Co. Dexter, Osborn & Fleming, for receiver of New York City Ry. Co. Masten & Nichols, for receivers of Metropolitan St. Ry. Co. Bowers & Sands, for Forty-Second St., M. & St. N. Ave. Ry. Co. Evarts, Choate & Sherman, for receiver of Forty-Second St.," M. & St. N. Ave. Ry. Co. Bronson Winthrop, for Morton Trust Co. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. The receiver of the Forty-Second Street, Manhattanville & St Nicholas Avenue Railway Company asks for an order directing the defendant Metropolitan Street Railway Company, and Adrian H. Joline and Douglas Robinson, as its receivers, to recognize the right of the Foity-Second Street, Manhattanville & St. Nicholas Avenue Railway Company to maintain and operate a street surface railroad in the borough of Manhattan, city of New York, on Amsterdam avenue, between Seventy-First street and 125th street, and to use in the operation of its street surface railroad on Amsterdam avenue, between said streets, the present electric conduit or electric construction tracks and equipment now laid and existing and in use in Amsterdam avenue, between said streets, in common with said Metropolitan Street Railway Company, or Adrian H. Joline and Douglas Robinson, its receivers, and the Ninth Avenue Railroad Company, or by joint operation with them or either or any of them. The court is not inclined to dispose of the numerous and difficult questions here presented in any such summary manner. As to the subsidiary or alternative relief prayed for, the receivers of the Metropolitan Street Railway" and the receivers of the Forty-Second Street, etc., Railway are authorized, but not instructed, to enter into negotiations with each other touching the operation of cars within the limits above set forth; and in the event of such negotiations resulting in nothing the receiver of the last-named road is authorized to bring suit; in any court, to establish any right which he may be advised said road possesses, and he may make the receivers of the Metropolitan Street Railwa)" Company defendants in such suit. This disposition of the pending motion is not to be construed as indicating the expression of an opinion one way or the other upon any of the points presented by the petition and answers or discussed on the argument.