Smith v. Butler

38 How. Pr. 192

• Court: New York Court of Common Pleas
• Decided: December 15, 1864
• Status: Published

Opinion

Carduzo, J.

The twelfth section of the act of congress, passed September 24, 1789, provided that 11 if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, it may, if it involve more than five hundred dollars, and certain things be done by the defendant, be removed to the United States court.”

The present motion is based on that act, and as its provisions are seldom invoked, it is not surprising that they are but little understood and very generally misapprehended. The proofs before me establish that the plaintiffs are not citizens of this state. They are citizens of Louisiana, temporarily sojourning here. As, therefore, this suit is brought against a defendant who is a resident of another state, and is not prosecuted by a citizen of this state, the case is. not within the statute, either in form or in spirit. Probably the, object of the statute was to guard against the possibility or the suspicion of bias in the state court in favor of its own citizen against a non-resident, but no such bias could be presumed when the litigation was between non-residents.

The motion must be denied, with ten dollars costs to the plaintiff, to abide the event of the action.