Norton v. Hayes

4 Denio 245

• Court: New York Supreme Court
• Decided: April 15, 1847
• Status: Published

Opinion

By the Court, Beardsley, J.

The notice of retainer, given by Mr. Terry as attorney for Hayes, was not “ entering his appearance” in the cause, within the terms or the meaning of the act of congress. (1 Story’s Laws U. S. 57, § 12.) The appearance was first entered by Mr. Goddard on the 23d of December, at which time the petition for the removal of the cause, and a bond with sureties, as the act requires, were filed with the clerk. These being done at one and the same time, the application for the removal was made in due season. (Supra, § 12; Redmond v. Russell, 12 John. 153.)

This is not an action on contract, but was brought for an alleged tort; and although the capias was issued against three persons as defendants, the action, as now situated, is, in strictness, against Hayes alone. The writ was served only on him, the others being returned not found. Actions for torts may be brought against all or any of the wrongdoers, at the election of the party suing. Here the plaintiff issued a writ against three as joint tortfeasors, but which was served on one of them only. Notice of retainer was given for that defendant, the others not having appeared in any form; and in this state of the case, without taking any further steps to bring the other defendants into court, the plaintiff filed and served a declaration in the cause. The declaration not being amongst the papers, I know nothing what its form may be; but in legal effect, it must necessarily be against the defendant Hayes alone, for the others are in no sense before this court, as defendants to the action. In this posture of the case, it must be regarded as an action against Hayes as sole defendant. He therefore is entitled to have it removed without regard to those who, in the writ, were named as co-defendants with him. The bond for appearance in the circuit court, &c. is in due form, and no objection was made to the sufficiency of the sureties. The parties are such as to authorize a removal under the act of congress, and “ the matter in dispute,” as is shown by the amount claimed in the writ, exceeds five hundred dollars. (Supra, § 12; The People, &c. v. The Judges of the N. Y. Com. Pleas, 2 Denio, 197; Gordon v. Longest, 16 Pet. 97.) The case is therefore one which the defendant has a right to have removed to a court of the United States.

It was suggested by the counsel for the plaintiff that the case should be sent to the circuit court of the United States for the northern district of New-York, if transferred at all from the state court. That might be done, and such was the course in the case of Suydam v. Smith, (1 Denio, 263.) But that was on the ground of convenience, and no such ground is here shown. The plaintiff has not made any affidavit on the subject, and his attorney only swears that his client resides in Troy, and has assured him, which said attorney “verily believes, that unless he can be enabled to bring the said cause to trial in Rensselaer county, or in Albany county, he, the said plaintiff, will be subject to a serious inconvenience and increase "of trouble and expense.” This is very general in its terms and import; but, had it been stated by the plaintiff himself, it might, perhaps, have been deemed sufficient. As it is merely what the attorney says his client stated to him, it cannot be acted upon, no reason appearing why the client himself did not make an affidavit on the subject.

The cause must be removed to the circuit court for the southern district of New-York.

Motion granted.