Batchelder v. Council Grove Water Co.

On the argument of the appeal it was conceded by the learned counsel for the appellant that, if the judgment is right, the order for the’ extra allowance is unassailable, which involves that in such a case the order refusing a rehearing upon the question of an allowance is also correct. I have examined, therefore, only the question whether the judgment is right.' The facts of the case are somewhat different from the facts as they appear in Mallory v. The West Shore Hudson River R. R. Co., 35 N. Y. Superior Ct. R. 174, but the difference is so unimportant as not to work a different result. On a full and careful examination of all the instruments simultaneously executed in this case viz.: *271the bonds, the coupons, and the trust deed or mortgage, for the purpose of discovering the true intent and meaning of the contract thereby made, the conclusion is unavoidable that, upon default in the payment of the interest and the continuance of such default for a certain period named, the principal sum of each bond was to become due, not absolutely, but in the manner and with the effect provided in the trust deed or mortgage. The scheme of payment provided by the trust deed or mortgage shows that it was intended that the holders of the bonds should look to the mortgaged premises for their security in the event of default in the payment of the bonds; that the question of foreclosure and sale should be remitted to the discretion of a majority of- the bondholders, and that the bondholders should share ratably in the proceeds.

The judgment and orders should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.