Pioneer Steamship Co. v. Sanday

Appellate Division of the Supreme Court of New York

Pioneer Steamship Co. v. Sanday

210 A.D. 318, 206 N.Y.S. 338, 1924 N.Y. App. Div. LEXIS 6720

Appellate Division of the Supreme Court of the State of New York·Decided September 24, 1924·Published·Cited by 3 cases

Opinion

Per Curiam:

Whether a proper case has been made for removal of an action from a State to a Federal court is a Federal question. The right [319]*319of removal is derived from an United States statute. The method of reviewing the action of a State court, if it has approved an application for removal, is provided in the United States Judicial Code. While there is considerable diversity of opinion in the cases upon the subject, we are inclined to the opinion that the method of review provided in the Judicial Code is exclusive. (Railroad Co. v. Koontz, 104 U. S. 5; Madisonville Traction Co. v. St. Bernard Mining Co., 196 id. 239; Chesapeake & Ohio R. Co. v. McCabe, 213 id. 207; U. S. Judicial Code, §§ 28, 29, 37; 36 U. S. Stat. at Large, 1094, § 28, as amd. by 38 id. 278, chap. 11; 36 id. 1095, § 29; Id. 1098, § 37.)

We have reached the conclusion that the papers presented to the Special Term were sufficient and that the complaint does not state a cause of action against the Williamson Forwarding Company, Inc. In order that both questions may be passed upon by the Court of Appeals, if the case reaches that court, we have decided to affirm the order rather than to dismiss the appeal.

All concur. Present — Httbbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Per Curiam:

Whether a proper case has been made for removal of an action from a State to a Federal court is a Federal question. The right [319]*319of removal is derived from an United States statute. The method of reviewing the action of a State court, if it has approved an application for removal, is provided in the United States Judicial Code. While there is considerable diversity of opinion in the cases upon the subject, we are inclined to the opinion that the method of review provided in the Judicial Code is exclusive. (Railroad Co. v. Koontz, 104 U. S. 5; Madisonville Traction Co. v. St. Bernard Mining Co., 196 id. 239; Chesapeake & Ohio R. Co. v. McCabe, 213 id. 207; U. S. Judicial Code, §§ 28, 29, 37; 36 U. S. Stat. at Large, 1094, § 28, as amd. by 38 id. 278, chap. 11; 36 id. 1095, § 29; Id. 1098, § 37.)

We have reached the conclusion that the papers presented to the Special Term were sufficient and that the complaint does not state a cause of action against the Williamson Forwarding Company, Inc. In order that both questions may be passed upon by the Court of Appeals, if the case reaches that court, we have decided to affirm the order rather than to dismiss the appeal.

All concur. Present — Httbbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order affirmed, with ten dollars costs and disbursements.

Pioneer Steamship Co. v. Sanday, 210 A.D. 318, 206 N.Y.S. 338, 1924 N.Y. App. Div. LEXIS 6720 (N.Y. Ct. App. 1924).

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Opinion

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