231 F. 341 | S.D.N.Y. | 1916
(after stating the fae'ts as above).
Therefore the precise character of a liquidation under the French law is only indirectly involved; that is, only so far as bo see whether the plaintiff could honestly suppose that he could get some relief‘ against McCarter upon personal service made here. That is a question of state law. Chicago, R. I. & Pac. Ry. v. Schwyhart, supra; Chicago, R. I. & Pac. Ry. v. Whiteaker, 239 U. S. 421, 36 Sup. Ct. 152, 60 L. Ed. -. I shall assume that the petition of removal is sufficient upon its face, since it sets forth the basis of its conclusion, and I shall proceed directly to the merits of the issue joined.
The decision ,of the Supreme Court in Riverside, etc., Mills v. Menefee, supra, destroys any possible use for the joinder of McCarter as liquidator, since the state court must in any case dismiss as against the defendant corporation; but it does not avoid the necessity of deciding whether the joinder was fraudulent when made, because the decision was rendered after this action was commenced.
In a case so doubtful, where the validity -of a judgment against the corporation would at best have been of very doubtful validity extra-territorially, even 'before Riverside, etc., Mills v. Menefee, supra, I should suppose that the plaintiff might well think his case would stand belter if he got judgment in addition against the liquidator. I believe that to be the fact, though how far he will succeed I cannot tell. Even if I thought that judgment certainly valueless elsewhere, it would make no difference, unless I thought in addition that the state courts would not grant it for such effect as it might have.
Motion to remand granted.
Motion to dismiss itself dismissed for lack of jurisdiction, but of course without prejudice.