199 A.D. 362 | N.Y. App. Div. | 1922
The theory upon which the judgment was vacated is that the action on defendant’s application had been removed to the Federal court for the Southern District of New York. The complaint alleges that the plaintiff is a domestic corporation and that the defendant is a foreign corporation organized under the laws of Delaware, and then sets forth a cause of action for goods sold and delivered, and demands judgment thereon for $4,427.09. The summons and complaint were served on the defendant on the 30th day of July, 1921, but were not filed in the county clerk’s office until the eighteenth of August. On the twelfth of August defendant filed a petition for the removal of the cause to the District Court for the Southern District of New York. Plaintiff challenges the
The Special Term granted the motion on the ground that the cause of action had been removed to the Federal court by the filing of the petition and bond and the approval thereof by Mr. Justice Burr and that no formal order was necessary to remove it and that the plaintiff’s only remedy was in the Federal court, but in a memorandum on the settlement of the order the court states that it would not on an application to set aside the judgment entered as on a default entertain objections to the sufficiency of the petition for the removal of the cause, but that on a motion made by the plaintiff the sufficiency of the petition might be attacked. This court in Heath v. Santa Lucia Co. (196 App. Div. 446), following the Federal authorities (See, also, Insurance Co. v. Dunn, 19 Wall. 214, and Kern v. Huidekoper, 103 U. S. 485, 490), held that no order of the State court is required for the removal of a cause to the Federal court and that when a proper and sufficient petition and bond for the removal of a cause are presented and filed, the State court has no discretion and must accept them and proceed no further in the action; but that the State court is not divested of its jurisdiction unless
Clarke, P. J., Page and Merrell, JJ., concur; Dowling, J., concurs in result.
Order affirmed, with ten dollars costs and disbursements.