215 F. 261 | E.D.N.Y | 1914
The plaintiff Orr is a resident of Kings county in this district. The defendant Cincinnati, Hamilton & Dayton Railway Company is a resident and citizen of Ohio. Action was brought upon a claim assigned to th'e plaintiff Orr by his brother, who is a resident and citizen of New York county, in the Southern district of New York. An equity action has been commenced in this
The cases of North American Trans. Co. v. Morrison, supra, and Brown v. Fletcher, supra, were disposed of upon defects in pleading or because the assignors were residents of the same district as the defendant.
The case of Con. Rub. Co. v. Ferguson, supra; was based upon objection by the defendant and the “proper” district for removal could not be a district in another state, as suggested in the cases of Mattison v. Boston & M. R. R. (D. C.) 205 Fed. 821, or Stewart v. Cybur Lumber Co. (D. C.) 211 Fed. 343.
The case of Stimson v. United Wrapping Mach. Co. (C. C.) 156 Fed. 298, was decided before the passage of the Judicial Code; but
The purpose of allowing removal is directly involved in the present action. The fact that both the assignor and assignee are citizens of the state of New York, and could bring action in any court in the state, makes it apparent that a change of district by assignment, for the purpose of preventing removal, should not be allowed as the basis for a forced application of the doctrine of In re Wisner, supra, under the clause allowing suit by an assignee only when the assignor might sue in the same jurisdiction. Where the defendant has waived the question of being sued in the district, the assignor could certainly maintain his action, and thac is the situation we have in this case.
The motion to remand must be denied, and the motion for injunction granted.