Lewicki v. John C. Wiardi & Co.

213 F. 647, 1914 U.S. Dist. LEXIS 990

Opinion

CHATFIELD, District Judge.

[1] Plaintiff is an alien and has sued, alleging a. cause of action under the Employers’ Liability Law of New York (Consol. Laws, c. 31, §§ 200-204). A “third defense” to the cause of action which, or so much of the cause of action as, arose under that statute was based upon allegations that the plaintiff could not invoke the New York statute which was alleged to- be limited to citizens.

Plaintiff cites the case of Krzus v. Crow’s Nest Pass Coal Co., 16 Br. C. 120, and Jeffries v. Boosey, 4 House of Lords Cases, 815, to show that the English and Canadian statutes extend the benefit of those statutes to no one but citizens. But the New York statutes (Consolidated Laws 1909, c. 31, § 200) gives a cause of action against an employer to any employé. The courts of New York and of the United States have jurisdiction over suits by aliens against citizens, and the laws of the United States (section 28 of the Judicial Code [Act March 3, 1911, c. 231, 36 Stat. 1094, U. S. Comp. St. Supp. 1911, p. 140]) allow removal of such a cause of action and provide for application of the state laws in so far as may be (section 38).

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[2-4] A “fourth defense” is a plea that the federal court has not _ “jurisdiction over the alleged cause of action.” This defense can be raised at any time. It must be based upon some defect either apparent upon the face pf the record or appearing upon the proof.

Before ruling upon "such an objection, the defect must be pointed out or definitely stated in such a way as to be apparent to the court. In this respect the “fourth defense” is not sufficient, as it stands, to form the basis of a judgment apart from the portions of the record relied upon. In a sense, therefore, the demurrer is well founded, so far as the criticism of the wording of the “defense” is based merely upon the wording when standing alone.

The demurrer to the “third defense” will therefore be sustained, and the demurrer to the “fourth defense” will be sustained to the extent of requiring a statement of the alleged defect in jurisdiction before it will be heard by the court.