presumption, if any, being that it was due to causes over which such party had no control. The claimant further insists that the facts of People v. National Trust Co., 82 N. Y. 283, which is cited with approval and distinguished in the Globe Insurance Case, are so nearly on all fours with those of the claim here involved as to require its liquidation and allowance as an open and subsisting engagement of the corporation at the time of the appointment of receivers, in accordance with the principle there applied. There a lessor insisted on a right to have a claim for rent enforced by peremptory order for the full amount, without regard to the claims of the other creditors, out of assets of a corporation in receiver's hands, which were more than sufficient to meet the outstanding corporate engagements of every character, and to Jeave a surplus of $900,000 for distribution among the stockholders. His claim was for rent accruing in fixed amounts for the remainder of a term of five years. One year and seven months, during which the quarterly rent reserved had been paid, had elapsed when the receiver was appointed, and he occupied for thirteen months more, when he vacated, tendering a surrender, which was refused, but paying all rent then due, and the claim urged was for the next quarter of the remainder of the term. The sole answer was that, as in an action for ouster by the state a judgment of dissolution had been entered, the corporate life had been terminated and with it the lease and obligation thereunder, and it was on this question that the court passed, refusing as unnecessary to consider the question of priority, and holding, as the Court of Appeals in this circuit in Roth & Appel, supra, has recently held under the bankruptcy act, that where the receiver does not elect to adopt the lease, the lessee's obligation to pay rent in the future is not discharged and that his liability survives, but allowing its proof with those of other creditors, doubtless because there were sufficient funds. It is obvious that in this case, unlike the case at bar, or any of the cases I have cited, the controversy was, not between a creditor claimant and other creditors, but between the creditor claiming and a receiver representing the stockholders, whose surplus would have been diminished, had the claim been allowed. I do not regard it as determining that the law of this state is conclusive against receivers representing general creditors who are protesting, as here, against the allowance on an equality with such creditors of a claim contingent at the date of their appointment for damages likewise contingent and uncertain, since that question was not there present. Treating the contract in the claim at bar, as claimant insists it should be treated, as a lease, the lessee, not the lessor, as in this National Trust Co. Case, claims, not for fixed sums accruing at intervals under an outstanding lease, as there, but for contingent damages in the nature of speculative profits flowing and to flow as from an eviction subsequent to the receivers' appointment, insisting that the amount of such profits, if any, when determined, is provable on an equality with the claims of general creditors based on absolute liabilities calling at the date of the receivership for the payment of sums, ascertained or capable of ascertainment, matured or to mature against a fund, not, as in the National Trust Co. Case, sufficient to meet all outstanding claims contingent and absolute, but insufficient to meet even these latter. I do not think that the National Trust Co. Case establishes that the rule for New York state is that such a claim may be thus proved; but, if it do, it would be at variance, not only with later decisions of the same court (see People v. St. Nicholas Bank, 151 N. Y. 597, 45 N. E. 1129, and Matter of Hevenor, 144 N. Y. 271, 39 N. E. 393), but with the rule followed in this as well as other federal jurisdictions, and in other states as well, which rule, I assume, controls here. As originally filed, the claimant's demand was for $129.704.32, being at the rate of $10,000 per annum for the unexpired 12 years and odd of the term of 20 years; such annual sum being the amount promised it for the privilege for that period by its assignee, the American Express Company. Acquiescing in the contention that this did not furnish the proper measure of damages, it sought to establish such damages by proof of what the American Express had accomplished while operating, coupled with some opinion evidence as to the probability of claimant's accomplishing similar results in the future. The evidence adduced is attacked as wholly insufficient to base a finding on; but it is unnecessary to pass on the objection, as I conclude that it is not provable against general creditors. The receivers have until March 15, 1911, to file with me and serve a proposed report containing findings and conclusions in accordance with the foregoing; the claimant to have five days thereafter to file its objections. Page, Crawford & Tuska (G. H. Crawford, of counsel), for claim ant. Masten & Nichols (William M. Chadbourne, of counsel), for receivers of Metropolitan St. Ry. Co. O'Brien, Boardman & Platt (George N. Hamlin, of counsel), for contract creditors' committee. Charles Benner (Benjamin S. Catchings, of counsel), for tort creditors' committee. Geller, Rolston & Horan (Charles T. Payne, of counsel), for Farmers' Loan & Trust Co., as trustee, successor of Morton Trust Co., as trustee. LACOMBE, Circuit Judge. While fully concurring in the opinion of the special master as to the nature of this claim, and in his reasons for disallowing it, I am also clearly of the opinion that there was not sufficient evidence before him to determine whether the claimant would have made any profits at all, had it taken over the contract itself and undertaken to carry it out. The exceptions are overruled, and report of special master confirmed. PENNSYLVANIA STEEL CO. et al. v. NEW YORK CITY RY. CO. et al. In re NATIONAL CONDUIT & CABLE CO. (Circuit Court, S. D. New York. June 27, 1911.) In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and another. In the matter of claim of the National Conduit & Cable Company. On exceptions to report of special master. Report confirmed. The following is the report of Special Master W. L. Turner: On May 10, 1907, the claimant proposed to defendant named to manufacture and deliver certain transmission cables at prices stated. On May 11, 1907, the proposal was accepted, with modifications assented to on May 13, 1907, which were that the railway company reserved the right to specify between May 11, 1907, and July 1, 1908, the length of cable it desired to have manufactured, and the point of installation, and that deliveries might be deferred accordingly, if it so elected. No payment was to be made for cable not delivered under such circumstances, and it agreed to pay 90 per cent. of the contract price for all cable delivered in accordance with instructions within 30 days after delivery. Receivers were appointed of the railway company on September 24, 1907. The copper and lead required in the manufacture of the cable was purchased by claimant prior to such appointment; but it is conceded by the claimant that there was no breach of the contract until the appointment of the receivThese elected on January 17, 1908, not to adopt it, and refused to specify in accordance with its terms. The parties agreed that on the market price of cable specified in the contract the claimant would have sustained on Sep ers. tember 24, 1907, a loss of $44,232.20, and on January 17, 1908, based on the then market price, damage would be $64,974.20. This is the case of an executory contract not broken at the date of the appointment of the receivers, and, as it is not to be distinguished from the claim of the Metropolitan Express Company against the Metropolitan receiv ership (188 Fed. 339), to the memorandum as to which counsel is referred, the same disposition will be made of it. As he has cited a case not relied upon therein, it may be proper to point out that in that case (In re Stern, 116 Fed. 604, 54 C. C. A. 60), as the opinion of Judge Townsend shows, the executory contracts there involved had been broken before the petition had been filed, and that their breach furnished the reason that the creditors had for forcing the debtor into bankruptcy. The receiver may file and serve a proposed report on March 15, 1911, embodying findings and conclusions accordingly; the claimant to have five days thereafter to file its objections thereto. Johnson & Galston (Clarence Galston, of counsel), for claimant. Dexter, Osborn & Fleming (Matthew C. Fleming, of counsel), for receiver of New York City Ry. Co. Charles Benner (Benjamin S. Catchings, of counsel), for tort creditors' committee. O'Brien, Boardman & Platt (George N. Hamlin, of counsel), for contract creditors' committee. Geller, Rolston & Horan (Charles T. Payne, of counsel), for Farmers' Loan & Trust Co., as trustee, successor of Morton Trust Co., as trustee. LACOMBE, Circuit Judge. I concur in the conclusion of the special master that this claim is not to be distinguished from that of the Metropolitan Express, 188 Fed. 339, in which opinion is filed to-day. The exceptions are overruled, and special master's report is confirmed. Ex parte ZENTNER. (District Court, D. Massachusetts. May 12, 1910.) No. 298. 1. EXTRADITION (§ 11*)-INTERNATIONAL-COMPLAINT-FORGERY. Where a complaint in proceedings to extradite accused for forgery set forth the offense with sufficient particularity to advise him of the offense wherewith he was charged, it was not defective for failure to set forth copies of the instrument alleged to have been forged; the particularity of an indictment not being required in such a complaint if a crime within the extradition treaty is substantially charged. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 12; Dec. Dig. § 11.*] 2. EXTRADITION (§ 14*)-DEPOSITIONS-TRANSLATION. Where certain depositions attached to extradition papers were in the German language, and the translator testified before the commissioner that he had dictated the translation to a typewriter, that he had examined and compared it as written out, and that the translation was correct, there being no claim by petitioner that the translation was in any respect inaccurate, it was no objection to the translation that the typewriter did not also testify with reference thereto. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 16; Dec. Dig. § 14.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 3. EXTRADITION (§ 10*)-PROCEEDINGS-DEMAND BY FOREIGN GOVERNMENT. No prior demand by a foreign government is necessary before the arrest of a fugitive from the justice of such government in extradition proceedings. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 11; Dec. Dig. § 10.*] 4. HABEAS CORPUS (§ 92*) · SCOPE OF INQUIRY EXTRADITION - EVIDENCESUFFICIENCY. A fugitive from the justice of a foreign government is not entitled to his discharge from arrest in extradition proceedings on habeas corpus for insufficiency of evidence, if the commissioner before whom he was examined had before him competent legal evidence on which to exercise his judgment, whether the facts shown sufficiently establish petitioner's criminality, for purposes of extradition. [Ed. Note. For other cases, see Habeas Corpus, Dec. Dig. § 92.*] 5. EXTRADITION (§ 14*)-EVIDENCE-FORGERY. Evidence offered before a commissioner in extradition proceedings for forgery alleged to have been committed in a foreign country held sufficient to justify petitioner's return. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 16; Dec. Dig. § 14.*] 6. EXTRADITION (§ 11*)-VARIANCE-MATERIALITY. In proceedings to extradite petitioner for forgery alleged to have been committed in a foreign country, a variance between the complaint and the evidence as to the dates of the instruments alleged to have been forged was immaterial. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 12; Dec. Dig. § 11.*] 7. EXTRADITION (§ 14*)-FORGERY-FRAUDULENT INTENT. Where in proceedings to extradite petitioner for forgery, there was evidence that he raised two acceptances beyond the amounts named in figures on them at the time they were given him, and then put them in circulation without the acceptor's knowledge or consent, such proof was sufficient evidence of a fraudulent intent for purposes of extradition. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 16; Dec. Dig. § 14.*] 8. HABEAS CORPUS (§ 85*)—EVIDENCE-EXTRADITION. In habeas corpus proceedings to secure petitioner's release from arrest in extradition for alleged forgery committed in a foreign country, evidence that, by reason of business relations between petitioner and the persons claimed to have been defrauded, they were not entitled to claim that petitioner's act amounted to more than a breach of trust, was immaterial. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.*] 9. EXTRADITION (§ 14*)-NATURE OF PROCEEDINGS-ATTITUDE OF COMPLAIN ANTS. Where extradition proceedings for forgery were in the name of the German government under treaty with the United States, the attitude or motives of the persons alleged to have been defrauded were immaterial. [Ed. Note.-For other cases, see Extradition, Cent. Dig. § 15; Dec. Dig. § 14.*] 10. EXTRADITION (§ 5*)-TREATY-OFFENSE-FORGERY. Treaty with Bavaria, Sept. 12, 1853, art. 1, 10 Stat. 1022, authorizing extradition of persons charged with forgery or utterance of forged papers, was applicable where it appeared that written instruments had been falsely uttered by accused for fraud and deceit, and that the instruments For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes were of such a description that they might defraud or deceive if issued with such intent. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 6; Dec. Dig. § 5.*] Petition by Heinrich Zentner for habeas corpus to obtain his discharge from custody and extradition proceedings. Denied. Eyges, Wyner & Freedman, for petitioner. E. Mark Sullivan, Asst. U. S. Atty., for U. S. Marshal. DODGE, District Judge. On May 4, 1910, a warrant for the commitment of this petitioner, under Rev. St. § 5270 (U. S. Comp. St. 1901, p. 3591), was issued by William A. Hayes 2d, a United States commissioner duly authorized by this court to issue warrants for the arrest of fugitives from justice of foreign governments between which and the United States there are treaties and conventions of extradition. The petitioner is in the custody of the United States marshal under that warrant. Upon the present petition, filed May 4, 1910, the marshal was ordered to show cause why a writ of habeas corpus should not issue. The petition, besides praying for the issuance of the writ of habeas corpus, asked that a writ of certiorari might issue to the commissioner, directing him "to certify to the court the record by which the cause of your petitioner's commitment may be examined and its legality investigated." A writ of certiorari was issued accordingly, and the record of the proceedings before the commissioner, submitted by him as directed, was before the court at the hearing upon the order to show cause, and has been duly considered. A treaty for extradition between the United States of America and the King of Bavaria was concluded September 12, 1853, ratified November 1, 1854, and proclaimed November 18, 1854. Bavaria has since become a part of the German Empire. The treaty is now in force. 10 Stat. 1022. By article 1 of the treaty both governments agreed to deliver up upon requisition all persons who being charged, among other crimes specified, with the crime of forgery or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum or be found within the territory of the other. Article 1 further provides that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed. There is no dispute as to these facts. The commissioner's record in the case shows that on March 31, 1910, there was filed before him a complaint, sworn to by the Imperial German Consul at Boston, wherein were set forth charges against Heinrich Zentner, the present petitioner, which may be summarized as follows: That he (1) on October 10, 1907, forged a draft accepted by C. H. Arnold, the drawee, by increasing the amount thereof from 2,184 marks 79 d. to 12,184 marks 79 d.; (2) on October 10, 1907, forged a draft accepted by said Arnold by increasing its amount from 2,973 marks 73 d. to For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |