should be reversed on appeal, the funds proposed to be escrowed would not necessarily be payable to the Harlem or the taxing authorities. And, in view of the income generated by the leased properties, and the power of sale in the lease, there is no need for an escrow to insure payment in the event of affirmance.
The second issue now before the Court arises from the "second motion of the Fidelity Bank to declare lease terminated for Trustees' failure to affirm or reject within reasonable time" (Document No. 4864, filed December 21, 1972). In this motion, Fidelity, as minority shareholder of the Harlem, acting derivatively, asserts that the Harlem lease should be terminated because the Trustees failed to comply with Order No. 975. It is alleged that the Trustees did not exercise their right to affirm within the time set forth in that Order, and that the Trustees, by failing to pay the taxes discussed above, have breached a condition of the affirmance order.
As noted at the outset, a condition of Order No. 975 was that the Trustees pay the Harlem taxes "without undue delay." They have not breached that condition. For the reasons set forth above, I have concluded that these payments should not be made until the appeal from Order No. 975 is concluded.
Paragraph 2 of Order No. 975, directing the Trustees to exercise the authority conferred by that Order within 15 days from the date of the Order, was not a condition of affirmance, but merely a direction to the Trustees. Thus, even if the Trustees had failed to comply within the time limit, this would not necessarily have resulted in cancellation of the authorization, particularly in the absence of prejudice. The sole purpose of inserting paragraph 2 in Order No. 975 was to insure finality for purposes of appeal, and to clear up as many loose ends as possible.
Be all that as it may, it is clear that the Trustees did comply within the time limit. The 15-day period prescribed by the Order would have expired on Saturday, November 4, 1972. The Trustees executed their formal document of affirmance before that date, and it was actually served on Monday, November 6, 1972. Because of the intervention of the weekend, service on November 6, 1972 was timely.
And now, this 14th day of February, 1973, it is ordered:
1. That the Trustees' "motion for authority to defer payment of taxes upon and relating to properties and operations governed by lease from New York and Harlem Railroad Company" (Document No. 4741) is granted.
2. That the "second motion of the Fidelity Bank to declare lease terminated for Trustees' failure to affirm or reject within reasonable time" (Document No. 4864) is denied.
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