Page:Federal Reporter, 1st Series, Volume 10.djvu/435

PLA.GQ V. MiNHATTAN BY. 00. e^M �between the three contracting parties. The Metropolitan Company joina its objections to those of the Manhattan Company, and protests against the grant" ing of the petition, and claims the right to be heard by a formai suit upon the issues whieh have been presented. Their request is reasonable, and the re- lief asked for must be denied upon the ground of discretion, also, without prejudice, however, to the right of petitioner to bring au action against the receivers, leave to do which will be granted." �The portions of the tripartite agreement thus referred to as fortn- ing a sort of quasi partncrship are a provision providing for building certain parts of the railway struetnies at the joint expense of the New York and the Metropolitan, and a provision (article 14) that when- ever, in any fiscal year, the Manhattan shall eleot to declare a divi- dend of more than 10 per cent, on its capital stock, the Manhattan shall pay to the New York and the Metropolitan a sum sufficient to enable thena to pay as large a dividend in excess of 10 per cent, on the stock of the New York and the Metropolitan as shall be declared on the stock of the Manhattan, in connection with the other provisions of that agreement. �Such was the condition of the litigation between or affecting the three companies, so far as it is material to refer to it, when, on the twenty-second of October, 1881, the agreement in writing was made between them, out of which the present suit arises. It sets forth, as part of it, copies of the tripartite agreement and of the two leases. It then recites ,that possession of the railways and property leased was delivered to the Manhattan, and it continued in the possession and operation thereof until July 14, 1881, when possession thereof was delivered to said receivers, who are still in possession thereof, operating them ; that "it has been found impracticable to carry out the various terms and conditions imposed by said agreement and leases on the Manhattan;" that the interests of each of the parties, as well as the interest of the public, still require that the Unes of rail- way shall continue to be operated under a single management, and that the parties, "for the purpose of settling all the matters and dif- ferences between them, and for continuing the operation of said prop- erties and railways by a single management," have agreed to modify the said agreement and leases as hereinafter set forth. It then pro- vides as follows : �First. The Manliattan shall continue to possess and operate the properties and railways for the period and on the terras agreed in the leases, except as •' herein" modified or changed, such possession to comnience as soon as the prop- erties can be obtained from the receivers. �Second. The Manhattan, from moneys received by it on acquiring posses- ��� �