Hulbert v. Russo

64 F. 8, 1894 U.S. App. LEXIS 3024

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 13, 1894
• Status: Published

Opinion

LAOOMBE, Circuit Judge.

To give to section 779 of the New York Code the effect contended for would be practically to amend the federal statute by adding to the paragraph authorizing nonresident defendants to remove cases into the federal circuit court the clause: “Provided, that at the time when removal papers are filed said defendants are not in default by reason of nonpayment of any motion costs imposed by ihe state court.” It is hardly to he believed that the state legislature intended this, and, if it did, it is entirely clear that its enactment was inoperative to curtail the right of removal secured by the federal statute. The doctrine of waiver does not apply to such a case as this. Defendant has complied with the provisions of the federal statute. He has applied at the proper time, in the prescribed manner, and upon sufficient papers. He has done nothing in the state court whereby he ha.s secured some benefit which should estop him from repudiating his former action, as did the defendant in Bank v. Smith, 13 Blatchf. 224, Fed. Cas. No. 6,035. His failure to comply with the order of the stale court may leave him, after removal under a stay in this court, as he would be if still in the state court, but it cannot deprive him of the right secured to him by the federal statute, so long as its provisions are complied with. The technical objections to the papers are unsound. Motion to remand denied.