foreclosure and sale of the premises covered by such mortgage; that it was for the best interests of all concerned that all the property should be sold in one parcel, and a sale in any other way would be greatly to the detriment and injury of the parties interested in the railroad and its affairs; and that the rights of all the parties interested could be fully protected only by a sale of the mortgaged premises, property and appurtenances as an entirety.

As conclusions of law the court held that there was due under said mortgage for principal and interest the sum of $3,453,511.11, and that the plaintiff was entitled to a judg ment of foreclosure and sale.

James C. Carter and Simon Sterne for appellants. The defense pleaded in the answer was a valid one, and, if proved, should have defeated the foreclosure of the mortgage on the Northern Company's railway. The Central Company had no right to purchase the stock of the Northern Company with a hostile intent toward that corporation. (Perry on Trusts, 166, 428-435; Draper v. Gordon, 4 Sandf. Ch. 210; Slade v. Van Vechten, 11 Paige, 21; Quackenbush v. Leonard, 9 Paige, 334; Lewin on Trusts [8th ed.], 275-280; Jackson v. Ludeling, 21 Wall. 616; Wright v. O. G., etc., M. Co., 40 Cal. 20; Ervin v. 0. R. & N. Co., 27 Fed. Rep. 625; Taylor v. C. R. Co., L. R. [2 Exch.] 379; Meeker v. W. I. Co., 17 Fed. Rep. 48; Cook on Stockholders, § 622; Morawetz on Corp. 529; Beach on Private Corp. § 70; 2 Bigelow on Frauds, 645; Pearson v. C. R. R. Co., 13 Am. & Eng. R. Cases, 94, 102; Van Horne v. Fonda, 5 Johns. Ch. 388; Swinburne v. Swinburne, 28 N. Y. 573.) It was error for the trial court to decline to consider undisputed testimony and to refuse to make the findings of fact requested by appellants, although such court admitted in many instances, by the very form of its refusal to find "as being immaterial and a mere recitation of testimony," that the facts requested by appellants to be found had really been established. These erroneous refusals to find, and the additional error in actually making findings

unsupported by any evidence whatever, furnish all-sufficient and numerous grounds for the reversal of the judgment appealed from. (Callanan v. Gilman, 107 N. Y. 360; Baldwin v. Doying, 114 N. Y. 452.) The trial court erred in excluding evidence submitted by appellants in proof of the allegations of their defense, its errors in this respect being largely due to its erroneous views as to the validity of such defense, which caused it to regard evidence in support thereof as immaterial and irrelevant. The numerous exceptions to such rulings of the court are well taken. (Baylies on Code Pleading, 784; Hubbard v. Gorham, 38 Hun, 162; Walter v. Fowler, 85 N. Y. 621; 2 Perry on Trusts, § 760; 1 Rice on Ev. 511, 512, 615; McGrath v. Bell, 42 How. Pr. 182; Van Buren v. Wells, 19 Wend. 204.) The plaintiff had no authority or right to bring this foreclosure suit, it not having received a valid request so to do from a sufficient number of bondholders as contemplated by the mortgage. It was error for the court to refuse so to find. And it was likewise error to refuse to dismiss the complaint on this ground at the close of plaintiff's case. (C. D., etc., R. R. Co. v. Fosdick, 106 U. S. 47.)

Ashbel Greene, David McClure and Thomas Thacher for respondents. The respondents claim that the answer is only on behalf of the company, and is to be considered precisely as if served by the corporation; that the intervenors, as individual stockholders, could not have defended, and that it follows that the defendants are bound by the corporate acts and admissions of the railway company, and proofs conclusive against the company are conclusive against Pick and Holmes in the present suit. (Hyatt v. Allen, 56 N. Y. 553; Burrall v. B. R. R. Co., 75 N. Y. 216; Jermain v. L. S. & M. S. R. Co., 91 N. Y. 492; Davenport v. Dows, 18 Wall. 626; Humphreys v. McKissock, 140 U. S. 304; Porter v. Sabin, 149 U. S. 473; P. C. Co. v. M. P. Co., 115 U. S. 587; Morgan v. R. R. Co., 1 Woods, 15; Sala v. City of N. O., 2 Woods, 196; Forbes v. M. R. Co., 2 Woods, 323;

Porter v. P. B. S. Co., 120 U. S. 670; McMullen v. Ritchie, 64 Fed. Rep. 253.) The plaintiff's case entitled it to judgment. (Laws of 1892, chap. 688, § 5; Muller v. Dows, 94 U. S. 449; Hammock v. L. & T. Co., 105 U. S. 77; Columbia Co. v. K. R. Co., 60 Fed. Rep. 799; M. R. R. Co. v. Parker, 9 Ga. 377.) No request to foreclose is required by the mortgage. (Hollister v. Stewart, 111 N. Y. 644; Shaw v. R. R. Co. 100 U. S. 612; M. C. Co. v. T. R., 137 U. S. 171; G. T. & S. D. Co. v. G. C. S. & M. R. R. Co., 139 U. S. 137.) The trustee was requested to foreclose by the holders of $2,000,000 of bonds. (Bowling v. Harrison, 6 How. [U. S.] 248; Smedes v. Bank of Utica, 20 Johns. 372.) The appellants cannot make out a defense by combining facts proved with facts which they claim to have been erroneously prevented from proving. (Code Civ. Proc. § 522.) Upon the facts proved, no defense was made out based upon the appellants' theory of a trust with respect to the use of the bonds, because the bonds and a majority of the stock were held together. (B. C. Co. v. Hulmes, 157 Penn. St. 278; Mickles v. R. C. Bank, 11 Paige, 118; Pratt v. Bacon, 10 Pick. 123; Russell v. McLellan, 14 Pick: 63; Abbott v. Merriam, 8 Cush. 591; Gillett v. Bowen, 23 Fed. Rep. 625; Gamble V. Q. C. W. Co., 123 N. Y. 91; Harpending v. Munson, 91 N. Y. 652; Leavenworth Co. Comrs. v. C., R. I. & P. R. Co., 134 U. S. 688; C. T. Co. v. Bridges, 57 Fed. Rep. 767; F. C. Co. v. Fitzgerald, 137 U. S. 110.) Upon the facts proved, no defense was made out upon the theory that the purpose with which the Central bought bonds prevented their enforcement of the mortgage. (Morris v. Tuthill, 72 N. Y. 575; Phelps v. Nowlen, 72 N. Y. 39; C. B. Co. v. Paige, 83 N. Y. 188; Ramsey v. E. R. Co., 8 Abb. Pr. [N. S.] 174; Ervin v. O. R. & N. Co., 20 Fed. Rep. 579; Clinton v. Myers, 46 N. Y. 515; Oglesby v. Attrill, 105 U. S. 605; Simpson v. Dall, 3 Wall. 476; Adler v. Fenton, 24 How. [U. S.] 407.) Upon the facts proved, which are referred to under the last two points, no defense was made out upon any combination of the grounds therein referred to. (Beveridge v. N. Y. E. R. R.

1;

Co., 112 N. Y. 1.) Upon the facts proved, no defense was made out upon any theory of combination or conspiracy. (Ambler v. Choteau, 107 U. S. 591; Kent v. L. S. C. Co., 144 U. S. 91.) No defense was made out as based upon a diversion of earnings causing default. (Day v. 0. & L. C. R. R. Co., 107 N. Y. 129; Thomas v. N. Y. & G. L. R. Co., 139 N. Y. 163; Parsons v. Hayes, 18 J. & S. 29; Mann v. Currie, 2 Barb. 294; In re S., C. & N. Y. R. R. Co., 91 N. Y. Dimpfell v. O. & M. R. Co., 110 U. S. 210; Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1; Leslie v. Lorillard, 110 N. Y. 519; P. C. Co. v. M. P. Co., 115 U. S. 587; Porter v. P. B. S. Co., 120 U. S. 670; Allen v. Wilson, 28 Fed. Rep. 678.) The question whether the Central had power to buy the bonds and stock of the Northern is wholly irrelevant. But it clearly had the power. (Laws of 1887, chap. 616, §§ 4, 15, 18, 19, 46, 48; II. & G. M. Co. v. II. & W. M. Co., 127 N. Y. 252; S. L. Co. v. North, 4 Johns. Ch. 270; S. N. Co. v. Weed, 17 Barb. 378; Humbert v. Trinity Church, 24 Wend. 630; Bogardus v. Trinity Church, 4 Sandf. Ch. 758.) There is nothing in the point made that failure to demur or object to the answer permitted the introduction of immaterial evidence. (Code Civ. Proc. § 499; Corning v. Corning, 6 N. Y. 97; Braman v. Bingham, 26 N. Y. 483, 490; Bronner v. Frauenthal, 37 N. Y. 166.) There was no error committed in the exclusion of evidence offered in support of the defense. (Howard v. C. F. Ins. Co., 4 Den. 502.) The appellants do not particularize the precise exceptions to refusals to find upon which they rely, but make a summing up of what they state are the facts proven beyond dispute, and seek to throw upon respondents' counsel and the court the task of seeing whether perchance some fact or other which would possibly have been found has escaped the notice of the trial judge or of opposing counsel. This course of procedure has received no countenance from this court. (Quincey v. Young, 53 N. Y. 507; Callanan v. Gilman, 107 N. Y. 372; Stewart v. Morss, 79 N. Y. 629; Baldwin v. Doying, 114 N. Y. 452; Glacius v. Black, 50 N. Y. 147; Quincey v. White, 63 N. Y. 370, 381.)

N. Y. Rep.]

Opinion of the Court, per MARTIN, J.

MARTIN, J. That the New York Central and Hudson River Railroad Company purchased a majority of the second mortgage bonds and a majority of the stock of the New York and Northern Railway Company for the sole purpose of obtaining control of the property of the latter, is clearly established by the proof contained in the record. Indeed, such was the avowed purpose of its purchase. The record renders it equally clear that the New York Central and Hudson River Railroad Company was the actual and beneficial owner of such bonds and stock for several months before the commencement of this action. They were retained in the hands of Drexel, Morgan & Company, not as owners or holders in their own right, but as agents or naked trustees for the New York Central and Hudson River Railroad, and were clearly subject to the order and control of the latter. Moreover, the request that Drexel, Morgan & Company made to the plaintiff to commence this action was not only based upon the bonds owned by the New York Central and Hudson River Railroad Company and others it had contracted to purchase, but the sole purpose of that request was to procure a foreclosure and thus enable the New York Central and Hudson River Railroad Company to acquire control of the property and franchises of the New York and Northern Railway Company for its own benefit, as set forth in the circular letter sent to the stockholders of the New York Central and Hudson River Railroad Company. The president of the latter company himself testified that that was the object and purpose which induced the sending of the notice requesting the commencement of this action. The notice given by the New York Central and Hudson River Railroad Company to its stockholders states the fact that on March 18, 1893, agreements had already been made in respect to the purchase of a controlling interest in the New York and Northern Railway Company, subject to the approval therein asked for. The letter of Drexel, Morgan & Company to the treasurer of the New York Central and Hudson River Railroad Company, dated April 5, 1893, shows that the majority of the stock and bonds mentioned therein was held by them, subject to the order of the