116 F. 713 | U.S. Circuit Court for the District of Southern New York | 1902
Upon the affidavits, it appears to be established by a fair preponderance of proof that the defendant is a citizen of Illinois, and a resident of that state, and, as such, entitled to remove the cause. There, is nothing in the pleadings, by direct averment, as to the amount or value of the matter in dispute. The petition expressly alleges that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and the facts, so far as disclosed, do not negative this assertion. The court has no way of determining that on April 19, 1902 (the day suit was commenced), the difference between the value of defendant’s real estate, unaffected by any claim of the plaintiff, and the same so affected by the claim plaintiff seeks to maintain,—that the land could' not be excavated -in the usual way for building purposes for an indefinite period,—was less than $2,000. The motion to remand is-denied.
It is not disputed that defendant owns in fee simple absolute the lot in question, which is situated between two occupied dwellings, one leased by plaintiff; that a stratum of solid rock runs through all three lots; that it is necessary for defendant, in order to secure proper foundation for the house he is about to build, to excavate into this rock; that the house he is about to build is not abnormal in size, or not such as the owners of adjoining lots might expect to see built next to them; that, in order to excavate defendant’s lot, it is necessary to drill and blast; that all drilling and blasting, so-far done by him, has been most carefully done, the charges used being extremely light, and very much less than what is allowed by city ordinance; that, by reason of the location and character of the
The motion is denied, and stay vacated.