196 A.D. 446 | N.Y. App. Div. | 1921
On the first application the sufficiency of the petition for the removal of the cause to oust the State court of jurisdiction was challenged. The court deemed the objections well taken and the amended petition was filed to meet and overcome them. If either petition was sufficient, it becomes unnecessary to consider the sufficiency of the other; and since the amended petition set forth all the facts contained in the original and additional facts, we shall consider it first.
The authority for the removal of a cause from the State court to the Federal court is contained in section 28 of the Judicial Code of the United States (36 U. S. Stat. at Large, 1094, § 28, as amd. by 38 id. 278, chap. 11). That section first provides for the removal of civil causes arising under the Constitution or laws of the United States or treaties. It is next provided that any other suit of a civil nature at law or in equity of which the District Courts of the United States are given jurisdiction, by the title containing said section, and thereafter brought in a State court “ may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State.” Provision is then made for the removal of causes involving a controversy between citizens of different States. This is followed by provisions for such removal of causes in certain cases on the ground of prejudice or local influence by which defendant will not be able to obtain justice in the State
The amended petition shows that the action is of a civil nature at common law, of which the District Court of the United States for the Southern District of New York has original jurisdiction; that it has been brought in the Supreme Court, New York county, and was commenced by the service of the summons and complaint on the defendants on the 1st of July, 1920, and that the time of the defendants to answer, plead or make such motion as they may be advised was by order of the court in which the action was brought extended twenty days from the 21st day of July, 1920, and that the issues have not been tried and that the time at or before which the defendants are required by the laws of New York or any
The decisions of the Federal court require that such a petition shall show the jurisdictional facts with technical accuracy in order to confei jurisdiction over the cause on the United States District Court and that it is not sufficient to show that the defendants reside elsewhere than in the State in which the action has been brought but it must be expressly
Dowling, Page, Merrell and Greenbaum, JJ., concur.
Appeal from order of July 26, 1920, dismissed; order of August 3, 1920, reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.