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qualified and entered upon the performance of their duties as receivers in accordance with the terms of said decree Exhibit C. Subsequently, on October 1, 1907, a petition was presented by the Metropolitan Street Railway Company, a copy of which petition is hereunto annexed marked Exhibit D. Attached to this petition, as Schedule A, was a copy of a lease between the Metropolitan Street Railway Company, as lessor, and the New York City Railway Company, which then bore the name of Interurban Street Railway Company, as lessee; and attached to said petition as Schedule B, was a copy of the mortgage of the Metropolitan Street Railway Company dated March 21, 1902, executed to the Morton Trust Company as trustee. On the same day (October 1), on notice to all the parties in said action, an order was made and entered granting the prayer of said petition, a copy of which is hereto annexed marked Exhibit E.

On October 8, the Morton Trust Company, trustee under the mortgage of the Metropolitan Street Railway Company dated March 21, 1902, filed a petition for leave to make the receivers parties to the suit it was about to begin, which petition was granted. (Exhibits F and G.) Thereupon, on October 9, a bill of complaint was filed by said Morton Trust Company. Said bill and the exhibits herein referred to are collectively marked Exhibit H. A subpoena was issued in said suit, and service of the same was made on October 9. Copies of the subpoena and the Marshal's return are hereto annexed, marked Exhibits H-2 and H-3. A decretal order was made on said bill (Exhibit J) appointing said Joline and Robinson as receivers of the property covered by said mortgage.

On October 7 upon return of the order to show cause (contained in the decree appointing temporary receivers dated September 24, 1907) why the receivership should not be continued during the pendency of the suit, a public hearing was had and thereafter on October 9, 1907, a decree continuing said Joline and Robinson as receivers during the pendency of the suit was made and entered (Exhibit K) which was subsequently, on October 15, 1907, amended as to its recitals by an order (Exhibit L.).

On October 25 a decretal order adjudicating the insolvency of the New York City Railway Company and appointing a Special Master to take proof of claims and directing public notice to be given of the time within which claims should be presented was made and filed (Exhibit M). Petitions for leave to intervene, etc., were presented and argument had upon them on October 14. Copies of the petitions, marked Exhibits N-2 and N-3 and N-4 and of certain affidavits filed in opposition, marked Exhibits N-5, N-6 and N-7 are annexed.

The Court heard the counsel of the parties fully on all the questions raised thereby and decided the same and on November 6, in the exercise of its jurisdiction and official discretion made orders denying such petitions (Exhibits N and O).

On November 9 a decretal order adjudicating the insolvency of the Metropolitan Street Railway Company, appointing a Special Master to take proof of claims, and directing public notice to be given of the time within which claims should be presented was made and filed. (Exhibit P.)

On November 9 the Morton Trust Company presented to the Court a

petition (Exhibit Q) stating that it was about to file a bill for the fore closure of the mortgage made by the Metropolitan Street Railway Company to the petitioner dated March 21, 1902, and praying leave to make Adrian H. Joline and Douglas Robinson as receivers of the New York City Railway Company and as receivers of the Metropolitan Street Railway Company, then in possession of the property embraced in the mortgage, parties defendant to said suit. On the same day the prayer of said petition was granted (Exhibit Q-2). Pursuant to said leave on the same day a bill of foreclosure was filed by the Morton Trust Company. Said bill and the exhibits therein referred to are hereto annexed, collectively marked Exhibit R. A subpoena was issued on said bill and service made thereof. Copies of the subpoena and the Marshal's return are annexed as Exhibit R-2 and R-3, respectively.

On November 19, upon motion, a decretal order (Exhibit S) was made appointing said Joline and Robinson under the bill of complaint to foreclose the mortgage dated March 21, 1902, receivers of the mortgaged premises and consolidating the two suits in which the Morton Trust Company is complainant.

Reasons for the making of the decrees or orders Exhibits C, E, K, N, and O appear in the three memoranda filed respectively on October 8, October 1, and October 28. Copies are annexed, marked Exhibits T, U and V. The other orders and decrees were entered because in the opinion of the Court the papers on which they were based, together with the earlier proceedings in the cause, indicated that such orders and decrees should be entered.

All orders and decrees were made upon due notice or upon the appearance of the parties, and in the exercise of the jurisdiction and official discretion of the respondents.

This return includes all papers in the case relating to any motion, peti tion, or application of Joseph Konrad, Daniel Gallagher, or Francis S. Reisenberg, and is confined to the record, in accordance with the respondent's construction of the purpose and intention of the order to show cause. The receivers have duly qualified in accordance with the different orders appointing them or extending their receivership.

Since the appointment of the receivers they have incurred many obligations under contracts for necessary work, labor and materials, for supplies, repairs, replacements of property destroyed by fire, and for improvements necessary to enable them to comply with requirements of the State and local authorities as to the operation of the road. Annexed hereto is a petition of the receivers for authority to make expenditures, marked Exhibit W, and an order granting the prayer of the petition, marked Exhibit X. They have also incurred liabilities by reason of the fact that accidents have occurred during operation of the cars, in many instances through some negligence of their employees, which have resulted in personal injuries for which claims for damages have been or will be made.

Messrs. Byrne & Cutcheon, solicitors for the complainants in the original suit, and J. Parker Kirlin, Esq., solicitor for the Metropolitan Street Railway Company, having desired to be heard, in order to secure them such

opportunity, the respondents hereby designate them or such associate counsel as they may select, to present this return and to file such brief and make such argument as may be required on the order to show cause.

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To the Honorable Alfred Conkling, Judge of the District Court of the United States for the Northern District of New York, GREETING: Whereas, one Martha Bradstreet hath heretofore commenced and prosecuted in your court several certain real actions, or writs of right, in your court lately pending between the said Martha Bradstreet, demandant, and the following named tenants severally and respectively, to wit, Apollos Cooper and others (naming them). And whereas, heretofore, to wit, at a session of the Supreme Court of the United States, held at Washington on the second Monday of January, in the year 1832, it ap peared, upon the complaint of the said Martha Bradstreet, among other things, that at a session of your said court, lately before holden by you, according to law, all and singular the said writs of right then and there pending before your said court, upon the several motions of the tenants aforesaid, were dismissed for the reason that there was no averment of the pecuniary value of the lands demanded by the said demandant in the several counts filed and exhibited by the said demandant against the several tenants aforesaid; which orders of your said court, so dismissing the said actions, were against the will and consent of said demandant; whereupon the said Supreme Court, at the instance of said demandant, granted a rule requiring you to show cause, if any you had, among other things, why a writ of mandamus from the said Supreme court should not be awarded and issued to you, commanding you to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right aforesaid and the mises therein joined. And whereas, at the late session of the said Supreme Court held at Washington on the second Monday of January in the year 1833, you certified and returned to the said Supreme Court, together with the said rule, that after the mises had been joined in the several causes mentioned in the said rule, motions were made therein, on the part of the tenants, that the same should be

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dismissed upon the ground that the counts respectively contained no allegation of the value of the matter in dispute, and that it did not therefore appear, by the pleadings, that the causes were within the jurisdiction of the court: that, in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance especially with several decisions in the [District] Court for the third circuit (see 4 Wash. C. C. Rep. 482, 624), you granted their motions; and assuming that the causes were rightly dismissed, it follows of course that you ought not to be required to reinstate them unless leave ought also to be granted to the demandant to amend her counts: and whereas, afterwards, to wit, at the same session of the said Supreme Court last aforesaid, upon consideration of your said return and of the cause shown by you therein against the said rule's being made absolute, and against the awarding and issuing of the said writ of mandamus, and upon consideration of the arguments of counsel, as well on your behalf, showing cause aforesaid, as on behalf of the said demandant in support of the said rule, it was considered by the said Supreme Court, that you had certified and returned to the said court an insufficient cause for having dismissed the said actions, and against the awarding and issuing of the said writ of mandamus, pursuant to the rule aforesaid; the said Supreme Court being of the opinion, and having determined and adjudged upon the matter aforesaid, that in cases where the demand is not made for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of the said Supreme Court and of the courts of the United States, is to allow the value to be given in evidence; that in pursuance of this practice, the demandant in the suits dismissed by order of the judge of the District Court had a right to give the value of the property demanded in evidence, either at or before the trial of the cause, and would have a right to give it in evidence in the said Supreme Court; consequently that she cannot be legally prevented from bringing her cases before the said Supreme Court; and it was also then and there considered by the said Supreme Court that the peremptory writ of the United States issue, requiring and commanding you, the said judge of the District Court, to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid; therefore you are hereby commanded and enjoined that immediately after the receipt of this writ, and without delay, you reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein above named, so that the complaint be not again made to the said Supreme Court; and that you certify perfect obedience and due execution of this writ to the said Supreme Court, to be held on the first Monday in August next. Hereof fail not at your peril, and have then there this writ.

Witness the Honorable John Marshall, Chief Justice of said Supreme Court, the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three.

[SEAL.]

W. T. CAROL,

Clerk of the Supreme Court of the United States.

MANDAMUS FORM X.-ORDER IN OBEDIENCE TO DECISION GRANTING MANDAMUS.

[247 U. S. 231.]

At a Stated Term of the District Court of the United States, for the Southern District of New York, held in the Post Office Building, Borough of Manhattan, City and County of New York, on the 21st day of June, 1918.

Present-HON. CHARLES M. HOUGH, United States Circuit Judge.

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An order having been made herein on or about October 25, 1917, at the direction of the Honorable Charles M. Hough, United States Circuit Judge which order, amongst other things directed, that the first cause of action set forth in the complaint herein be transferred to the equity side of this Court and stricken out of the complaint in this action at law and that the Clerk of this Court do forthwith and as of the date of said order docket as an equity cause the said first cause of action set forth in said complaint; and the above named plaintiff, Annie S. Simons, having duly presented her petition to the Supreme Court of the United States praying for a writ of mandamus against said Honorable Circuit Judge and against the District Court of the United States, for the Southern District of New York, commanding the said Judge and the said Court and each of them to vacate the said order and to continue to proceed at common law in the above entitled action upon both causes of action set forth in the complaint herein, or in the alternative for other appropriate relief, and a rule having been duly made and issued by said Supreme Court directing said Honorable Judge to show cause at a time therein specified, why the prayer of said petition should not be granted and such rule and such petition having duly come on for a hearing before the Supreme Court of the United States and having been duly argued by Roger Foster, Esq., of counsel for

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