Opinion
Argued April 19, 1922
Decided May 2, 1922
Walter K. Earle, Gerald Hughes and Howard S. Robertson for appellant.
Charles C. Deming for respondent.
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 depository. They did not get that quality until some one received and held them as enforceable obligations ( Zimmermann v. Timmermann, 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 enforcible because in the hands of a pledgee ( Duncomb et al. v. N.Y., H. N.R.R. Co., 84 N.Y. 190, 200). The contributions to the sinking fund must be based upon the bonds which have acquired a legal inception whether the disposition has been by pledge or otherwise.
Of the bonds in controversy, $100,000 were in pledge on November 1, 1916, and $500,000 on November 1, 1918.
The judgment of the Appellate Division should be modified by reducing the plaintiff's recovery to the sum of $6,000, with interest on $1,000 thereof from November 1, 1916, and with interest on $5,000 thereof from November 1, 1918, and as so modified affirmed, with costs to the appellant.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND and CRANE, JJ., concur; McLAUGHLIN and ANDREWS, JJ., not sitting.
Judgment accordingly.