Tomes v. Barney

35 F. 112, 1888 U.S. App. LEXIS 2424

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 9, 1888
• Status: Published

Opinion

Lacombe, J.,

(orally.) It seems to me that the principles of law governing decisions in federal courts in tire construction of the statutes of a state render the determination of this case easy. It is well settled that these courts, in construing the statute law of the several states, will follow the latest decision of the court of last resort in the particular state whose statute is before the court for construction. That doctrine was settled early in the history of the supreme court, and seems to control this case here. Judge Shipman, Judge Wheeler, and Judge Wallace, whose decisions are referred to by plaintiffs, have apparently all declined to examine the question anew, but have based their decision upon the decision of Judge Blatcheord. The decision of Judge Blatcheord is based upon the report of a referee. Judge Blatcheord has written nothing; but the report of the referee contains an elaborate discussion of decisions, perhaps conflicting, of the lower courts of the state. When the case ivas before Judge Blatcheord, if his attention were simply called to the fact, as was the referee’s, that there was a dispute between the different courts in the state upon this question, (and we must assume that it was so called,) he of course ivas entitled to examine such question ■as a new one, and to decide it accordingly. But if, subsequent to the enunciation of that decision, the court of last resort in the state had construed the statute the other way, I have not the slightest doubt that, upon that fact being brought to Judge Blatckford’s attention in a subsequent case, he would at once have reversed his former ruling. The situation is precisely the same whether the decision of the state court of last resort is made at a later period, or whether, at a later period, it is for the first time called to the attention of the federal court. Sitting on the trial of this case precisely as Judge Blatchford would sit if he were again disposing of the question which he disposed of in Dale v. Barney, I feel sure that, under the well-settled rules of construction established by the supreme court, I only decide as Judge Blatchford would decide, in holding that in view of the case of Stone v. Flower, 47 N. Y. 566, a case not before the referee, and presumably not before Judge Blatchford, and which is later than the state decisions before cited, this statute is to be construed, in the federal courts as in the state courts, as not covering absences which are not accompanied by residence abroad. 1 will therefore grant the defendant’s motion as to the items exacted prior to February 8, 1862.