32 How. Pr. 351 | N.Y. Sup. Ct. | 1866
Lead Opinion
The defendants are incorporated under the laws of Massachusetts. The plaintiff is a citizen of New York, and was assignee of a company incorporated under a law of Massachusetts. The defendants moved for an order to remove the cause into the United States Court. The motion was, granted, and the plaintiff appealed.
It is clear that between the original parties, as both were corporations created by the laws of Massachusetts, this action could not have been removed. But inasmuch as the plaintiff, who is assignee of the claim, is a citizen of New York, the case is within the statute, unless the United States Court is prevented from taking cognizance of the action under the 17th section of the United States statute, which says the court shall not have cognizance of any suit to recover the contents of a promissory note, or o.ther chose in action, in .favor of an assignee, unless a suit might have been prosecuted if no assignment had been made. The question, then, arises, is this action brought to recover upon a chose in action ? A chose
In Campbell v. Perkins, (8 N. Y. Rep. 430,) it was held, that a claim against common carriers, although in form for a wrong, was founded on contract. It was founded on an engagement, and is technically a claim. If so, then the claim is a chose in action transferred to the assignee, and bringing the case within the exception of the statute. It is similar in its nature to that of Anderson v. The Manufacturers’ Bank, (14 Abb. Pr. R. 436.) That action was against the defendant for not protesting a note. The ground was negligence. So, here, the action is for not delivering goods according to agreement.
I think, also, there is good ground for holding that the defendant, by obtaining time to answer, by an order from the court, and serving that, with a notice signed by an attorney, as attorney for. the defendant, did what was equivalent to an appearance. It was doing an act in the progress of the cause, and submitting to the jurisdiction of the state court, and was equivalent to an appearance. (Cooley v. Lawrence, 5 Duer, 610.)
The order should be reversed.
Clerks, J. concurred.
Dissenting Opinion
In order to bring this case within the principle of the case of Anderson v. Manufacturers’ Bank, (14 Abb. 436,) it must be determined that this action is brought to recover the contents of a promissory note, or other chose, in action, and if this is its character, it was conceded on the argument that the defendant was not entitled to remove the cause for trial into the federal court. The action is brought against the defendant as a common
It is thus obvious that the plaintiff is the vendee of the goods, to he transported, or of the claim to damages, after the defendant had violated its agreement to transport them, and had lost them, or converted them to its own use. This brings the case clearly within that of Deshler v. Dodge, (16 How. U. S. 622.) In that case, the suit was brought by the plaintiff, a citizen of New York, against the defendant, a citizen of Ohio, in replevin for a quantity of bank bills issued by banks in Ohio, and the plaintiff’s title was derived by assignment from the Ohio banks. It was entirely clear that the assignors (the Ohio banks) could not have maintained any action against the defendant, for the recovery of the bills, for the reason that both the banks and the defendant were citizens of the same state, and the case was therefore in this aspect precisely like the present; and the only question to be determined was, whether it came within the provisions of the act of congress forbidding jurisdiction to the federal courts, in suits by an assignee to recover the contents of a promissory note, or other chose, in action.
It was held by the Supreme Court of the United States, that the circuit court had jurisdiction of the action. Mr. Justice Nelson, delivering the opinion of the court, says: (16 How. 631:) “ We are of opinion that the clause of the statute has no application to the case of a suit by the assignee of a chose in action, to recover possession of the thing in specie,
The distinction as it respects the application of the 11th section of the judiciary act to' a suit concerning a chose in action is this : where the suit is brought to enforce the contract, the assignee is disabled, unless it might have been brought in the court if no assignment had been made ; but if brought for a tortious taking or wrongful detention of the chattel, then the remedy accrues to the person who has the right of property or of possession at the time, the same as in a case of a like wrong in respect to any other sort of personal chattel.”
It is difficult to see why this decision is not decisive of the present appeal, for it is entirely clear that this is an action to recover damages for the detention or non-delivery of personal property, and not for the recovery of the contents of a chose in action within the meaning of the act of congress. The plaintiff is not the assignee of the original contract for the transportation of the goods, but the assignee of the goods themselves and of the cause of action, arising from their conversion by the defendant or the refusal to deliver them on demand.
It is thus obvious that the plaintiff acquired no right by assignment until after the original' contract had been broken, and the right thus acquired was to the goods in specie or to damages for their unlawful detention. Such an action, according to the decision of the Supreme Court of the United States, is not an action to recover the contents of a chose in action, and is not within the exception named in the act of"
It is also urged that because this action is prosecuted by an assignee, the circuit court of the United States has no jurisdiction, This assumes that no action by an assignee can be maintained in the federal courts, and the assumption is entirely unfounded. As before shown, an action to recover damages for the caption and detention of property, is not for the recovery of the contents of a chose in action, and not within the exception in the act of congress, and if not, there is no objection to the jurisdiction. The jurisdiction is forbidden, only in specified cases, and it is enough to say that it is not one of them.
It is also said that if the right of removal is doubtful, the order should not be granted, and a suggestion of this kind was made in the case of Anderson v. Manufacturers’ Bank, (14 Abb. Pr. 436.) If this case is not within the exception in the act of congress, there is no doubt of the right of removal.. It is for the court to determine whether the defendant brings the case within the law, entitling it to have the action removed ; and if this appears, the question is free from doubt. If, on the contrary, the case is not entitled to be transferred to the federal court, it is equally clear that the order should be refused. It is for the court to say which of these alternatives, is presented, and when a conclusion is reached, all doubt is removed and the duty is plain.
The objection that the petition for the removal was brought too late is not tenable. The summons and complaint were served on the 5th of Juné, 1866, and the time to answer would expire on the 25th. On that day, on an affidavit showing the intention of the defendant to apply for a removal of the cause to the federal court,-' a chamber order was obtained from a justice of this court extending the time to answer twenty days, which was duly served. This was not entering an appearance in the action ; it was only a proceeding to prevent the entry of.judgment to enable the defendant to comply with the act of congress and apply for a transfer of the cause. On the 5th of July, the appearance of the defendant was entered, by a special order, and on that' day the petition and bond were filed. This must be regarded as suf
The defendant is a corporation created by the laws of the state of Massachusetts, and is therefore a citizen of that state. This is now too well settled to be longer questioned, and it is not questioned in this case. It is said, however, that, because the defendant is the lessee of, and operates, a railroad organized under a law of this state, it does not come within the act of congress. The right of removal depends upon the citizenship of the parties, and not upon the extent of the business they transact in this state; and it is not perceived how it can be said that a citizen of Massachusetts, doing business of any kind within this state, has waived his right to remove a cause to the federal court. Any such construction would nullify the act of congress. It is quite true that it has been decided at a special term, (24 How. Pr. 517,) that a foreign insurance company doing business in this state, and having appointed an agent under a special statute upon whom process might be served, lost the right to remove a cause to the courts of the United States. It is unnecessary to say whether this case was rightly decided or not, and there may
The order appealed from should be affirmed with $10 costs.
Order reversed.
Ingraham, Clerhe and Q. <■?. Barnard, Justices.]