135 F. 619 | U.S. Circuit Court for the District of Western New York | 1905
The facts, stated in a few words, are as follows: The plaintiff, a domestic corporation, brings this action to recover on contract against the Pittsburg, Shawmut & Northern Railroad Company, a domestic corporation, and the Interior Construction & Improvement Company, a corporation organized under the laws of the state of New Jersey. The action was originally instituted in the state court by personal service of the process upon the defendant railroad company, and by substituted service upon the defendant construction company. Thereupon a motion was made in the state court to set aside the substituted service, which was denied. This decision being affirmed on appeal by the Appellate Division (91 N. Y. Supp. 1101), the defendant construction company removed the action to this court under the act of March 3, 1875, c. 137 (18 Stat. 470), as amended by act approved August 13,
“It was quite possible and competent for the husband when making the contract to bind himself and his wife jointly. In that case there would be but one contract and but one cause of action, and possibly that was the theory upon which the learned counsel for the plaintiff constructed the complaint. It may be that he will not be able to establish such a contract at the trial. But the question here is whether such a contract is not stated on the face of the complaint.”
This principle would seem to hold good in this case. As already indicated, the plaintiff has selected his forum, and his complaint in a single cause of action evidently proceeds upon the theory that both defendants are bound by the contracts entered into between the plaintiff and the construction company. The plaintiff being entitled to one recovery only, it is quite probable that an election of parties defendant may be necessary, but this need not be done until the close of the case. Tew v. Wolfsohn, 77 App. Div. 454, 79 N. Y. Supp. 286. Under these circumstances the complaint does not disclose a divisible controversy, and the motion to remand must prevail. Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63; Little et al. v. Giles, 118 U. S. 596, 7 Sup. Ct. 32, 30 L. Ed. 269.