Mayor v. Independent Steam-Boat Co.

U.S. Circuit Court for the District of Southern New York

Mayor v. Independent Steam-Boat Co.

21 F. 593, 1884 U.S. App. LEXIS 2425

CourtU.S. Circuit Court for the District of Southern New York

DecidedOctober 1, 1884

StatusPublished

Cited by1 cases

This text of 21 F. 593 (Mayor v. Independent Steam-Boat Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mayor v. Independent Steam-Boat Co., 21 F. 593, 1884 U.S. App. LEXIS 2425 (circtsdny 1884).

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Opinion

Wallace, J.

This suit was removed from the state court upon the petition of one of the defendants, the Independent Steam-boat Company, a Now Jersey corporation. The bill of complaint alleges a'combination between that corporation, another New Jersey corporation, a New York corporation, and one Starin, a citizen of New York, to establish and operate a ferry in violation of the rights of the plaintiff, and that defendants are now operating such ferry. The prayer tor relief is for an injunction and an accounting.

Under the second subdivision of section 639 of the United States Revised Statutes such a suit might have been removed upon the petition of a single defendant, between whom and the plaintiff the requisite diversity of citizenship existed. But, as is held in Hyde v. Ruble, 104 U. S. 407, and King v. Cornell, 106 U. S. 395, S. C. 1 Sup. Ct. Rep. 312, that subdivision of the section was repealed by the act of March 3, 1875. The only authority, therefore, for a removal by one of several parties defendant is that provision of the act of March 3, 1875, which permits it when the controversy is wholly, between citizens of different states, and can be fully determined as between them. The controversy here is not of such a character. It Is not a separable controversy within the decisions of this court. Boyd v. Gill, 19 Fed. Rep. 145.

The petition alleges, among other things, that the controversy arises under the constitution and laws of the United States. If this is so, the suit, can only be removed on the petition of all of the defendants, [594]*594unless there is also a separable controversy as between the plaintiff and the removing defendant. All the substantial parties upon one side of the controversy must unite in order to remove the suit under the first clause of the second section of the act of March 3, 1875. Meyer v. Construction Co. 100 U. S. 457. Unless all desire and join in the removal it cannot be effected. .Here the defendant Starin and the New York corporation are as substantial parties defendant as is the New Jersey corporation.

The motion to remand is granted.

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Wallace, J.

This suit was removed from the state court upon the petition of one of the defendants, the Independent Steam-boat Company, a Now Jersey corporation. The bill of complaint alleges a'combination between that corporation, another New Jersey corporation, a New York corporation, and one Starin, a citizen of New York, to establish and operate a ferry in violation of the rights of the plaintiff, and that defendants are now operating such ferry. The prayer tor relief is for an injunction and an accounting.

Under the second subdivision of section 639 of the United States Revised Statutes such a suit might have been removed upon the petition of a single defendant, between whom and the plaintiff the requisite diversity of citizenship existed. But, as is held in Hyde v. Ruble, 104 U. S. 407, and King v. Cornell, 106 U. S. 395, S. C. 1 Sup. Ct. Rep. 312, that subdivision of the section was repealed by the act of March 3, 1875. The only authority, therefore, for a removal by one of several parties defendant is that provision of the act of March 3, 1875, which permits it when the controversy is wholly, between citizens of different states, and can be fully determined as between them. The controversy here is not of such a character. It Is not a separable controversy within the decisions of this court. Boyd v. Gill, 19 Fed. Rep. 145.

The petition alleges, among other things, that the controversy arises under the constitution and laws of the United States. If this is so, the suit, can only be removed on the petition of all of the defendants, [594]*594unless there is also a separable controversy as between the plaintiff and the removing defendant. All the substantial parties upon one side of the controversy must unite in order to remove the suit under the first clause of the second section of the act of March 3, 1875. Meyer v. Construction Co. 100 U. S. 457. Unless all desire and join in the removal it cannot be effected. .Here the defendant Starin and the New York corporation are as substantial parties defendant as is the New Jersey corporation.

The motion to remand is granted.

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Bluebook (online)

21 F. 593, 1884 U.S. App. LEXIS 2425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-v-independent-steam-boat-co-circtsdny-1884.

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