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MCARTHUR v. ROSENBAUM CO.

July 25, 1949

McARTHUR et al.
v.
ROSENBAUM CO. OF PITTSBURGH



The opinion of the court was delivered by: FOLLMER

This is an action for a declaratory judgment under Section 274d of the Judicial Code, 28 U.S.C.A. § 2201.

On plaintiffs' motion for judgment on the pleadings, by order dated March 30, 1949, as amended on March 31, 1949, D.C., 9 F.R.D. 1, Judge McVicar held, inter alia:

 1. The Declaratory Judgment Act provides a remedy for the rights asserted by plaintiffs in their petition or complaint and the complaint states a claim against the defendant upon which relief can be granted.

 3. The complaint does not show that plaintiff has failed to join an indispensable party or parties plaintiff.

 The above findings constitute, pro tanto, the law of the case. *fn1"

 At this point, the case proceeded to trial.

 Findings of Fact

 1. Plaintiff L. L. McArthur, Jr., is an individual whose residence is in Chicago, Illinois.

 2. Plaintiff, Northern Trust Company, is a corporation organized and existing under and by virtue of the laws of the State of Illinois, having its principal office and place of business in the City of Chicago, Cook County, in said State.

 3. Defendant, Rosenbaum Company of Pittsburgh, is a corporation organized and existing under the by virtue of the laws of the Commonwealth of Pennsylvania, having its principal office and place of business in the City of Pittsburgh, Allegheny County, in said Commonwealth.

 4. On or about the 2nd day of December, 1912, an agreement of lease was entered into by and between William Stanton, as lessor, and Rosenbaum Company, a Pennsylvania corporation (not the defendant herein), as lessee, covering lands and tenements involved in this proceeding.

 5. On or about the 6th day of December, 1912, an agreement of lease was entered into by and between William Stanton et al., as lessors, and Rosenbaum Company, a Pennsylvania corporation (not the defendant herein), as lessee. The terms of this lease, except for the names of the lessors, the description of the leased property and the rents payable thereunder, are identical with the terms of the lease between William Stanton and Rosenbaum Company, which lease is referred to in paragraph 4 above.

 6. Contemporaneously with the execution of the said leases the lessors executed a consent to the assignment of the said lease to The Rosenbaum Company (not the defendant herein), a company then formed and about to be incorporated under the laws of the Commonwealth of Pennsylvania.

 7. On or about the 12th day of April, 1913, The Rosenbaum Company (not the defendant herein) agreed to the terms of the assignment referred to above, and assumed the obligations of the lessee under the lease.

 8. Between the 23rd day of January, 1923, and the 2nd day of February, 1923, the said leases were assigned to National Department Stores, Inc., with the knowledge and consent of the lessors.

 9. Subsequently the lease was assigned first to Tech Corporation, then to National Department Stores, Inc., and finally to Rosenbaum Company of Pittsburgh, the present lessee and defendant herein.

 10. On the 14th day of February, 1933, receivers were appointed for the said Tech Corporation to No. 18101 in Bankruptcy in the United States District Court for the Western District of Pennsylvania. On the 14th day of June, 1934, the said bankruptcy proceedings were changed to proceedings for corporate reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., after which the said proceedings went on to completion and the discharge of the trustees on the 7th day of February, 1936.

 11. On the 6th day of February, 1933, receivers were appointed for said National Department Stores, Inc., to No. 966 in Bankruptcy in the United States District Court for the District of Delaware, and on the 11th day of April, 1933, said corporation was adjudicated bankrupt by said court.

 12. Before and during the pendency of bankruptcy proceedings the lessee defaulted in payment of rent and by virtue of said bankruptcy proceedings the lessors were awarded amounts for use and occupancy of the property until the 18th day of January, 1936, which amounts were substantially less than the stipulated rental.

 13. Under date of January 18, 1936, the lessors, plaintiffs herein, and National Department Stores, Inc., entered into an agreement modifying, changing and amending the terms of the original leases. *fn2"

 14. Rosenbaum Company of Pittsburgh, defendant herein, became the assignee of the lease by assignment of National Department ...


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