232 F. 635 | S.D.N.Y. | 1916
When this case was originally argued, the question was whether the plaintiff could have any cause of action against the liquidator. The defendants said that the liquidator was so clearly not liable that no one could have sued him, except
The matter arises in two aspects: First, whether the obligations alleged are joint; second, whether, if several, they may be “fully determined” separately, as required in section 28 of the Judicial Code. The language in Alabama' So. Ry. v. Thompson, supra, cannot, I think, mean that, where the plaintiff has alleged facts which 'under the state law would clearly create several obligations which could be separably tried, he may prevent removal by saying that he believes them to create joint obligations. Such a doctrine would make the removal depend upon what theory of law the plaintiff might honestly assert, and would leave the court nothing to do but ascertain how far his legal aberrations might actually carry him. The allegations of the complaint must be the test, but the court must decide whether they create controversies which are separable or inseparable, regardless of the plaintiff’s belief. Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. Ed. 1122.
Assuming, as I must, therefore, that these purely legal obligations are several, and not joint, there is nothing which prevents their being “fully determined” separately, because each would terminate with a money'judgment and execution. Certainly they could have been sued upon separately, had the plaintiff chosen; indeed, in New York it would seem that they must have been. Leszynsky v. Levinsohn, 170 App. Div. 514, 156 N. Y. Supp. 494. Unless the plaintiff had a joint obligation on which to sue, he could not, therefore, insist upon a joint disposition of the two controversies.
Therefore the removal by the corporation was good, and that by the liquidator was bad. Hence the action against the liquidator will be remanded as before, and the motion will be denied as to the corporation. The motion to dismiss as against the corporation is granted ; that against the liquidator dismissed for lack of jurisdiction.