Anderson v. Manufacturers' Bank

14 Abb. Pr. 436

• Court: New York Supreme Court
• Decided: May 15, 1862
• Status: Published

Opinion

By the Court.

*—Ingraham, P. J.

This action, if brought between the original parties, would not have been between citizens of different States, and could not have been removed into the United States court. Under the laws of this State, the assignee of a claim must sue in his own name in the courts of this State.

If such an action was removed into the United States courts the plaintiff could not maintain the action there, and it would be a good defence to the action that it was so brought.

Any change of parties, then, by allowing the name of the original party in interest to be substituted, would deprive that court of jurisdiction, because the action then would be between citizens of the same State.

The cause of action here, we think, comes within the proviso (Act of 1789, § 11; 1 Stat. at L., 78), being to recover a chose in action. The words are, “nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee,” unless suit might have been prosecuted in such court if no assignment had been made.

The whole statute is to be construed together so far as it relates to this subject; and when the effect of the removal would be to deprive the plaintiff of any right to maintain the action in the courts of the United States, the statute should not be so construed as to direct the removal, if it will admit of any other interpretation. At any rate, where the right of the defendant to remove the case is so doubtful as it is in the present case, the State court should not exercise the power.

We think the order appealed from should be affirmed.

Order affirmed.

Present, Ingraham, P. J., Rosekrans and Leonard, JJ.