PENROSE V. PENROSB.
(Clil'cult Court, E. D. N61JJ York. March 26, 1880.t
RBMOVAL OF CAUSES-COSTS IN STATE COURT-8'l'AY OF PROCEEDING&-
state court is without jurisdiction to award cos,ts in an action, or to make any order whatever, after the cause duly removed to the U. S. circuit court. A motion for stay of proceedings' in this court. beoouse costs 80 awarded without jurisdiction have not been paid, denicd.
H. C. Place, for plaintiff. Pertsham et Tyler, for ,defendant. BENEDICT, J. This cause was removed to this court by filing of the papers required by law. After the requisite papers had been filed in this court, and the jurisdiction of the court over the cause had attached, the defendant obtained from the state court an <;lrder directing the removal of the cause to this court, and awarding him $10 costs of the motion. From this order the plaintiff appealed to the general term of the state court, where the order appealed from was affirmed, and costs again awarded to the defendant. These costs not having been paid, the defendant now moves this court for a stay of proceedings until the costs so awarded be paid. The motion cannot be granted, for the reason that the state court was without jurisdiction to award the costs in question. Upon the filing of the petition and bond the state court could proceed no further with the cause. An order of the state court directing the removal of the cause, if made, and an order refusing the removal, would be equally without effect. The power of the state court to make any order whatever was gone, and, by necessary consequence, its award of costs against the plaintiff was void. Mayor v. Cooper, 6 Wall. 250. The motion is denied.
(Owcuit Oourt, E. D. New York.
March 211, 1880.)
PLEA IN ABATEMEN'f-PmOR ACTION PENDING-COUNTER CLArn.-An
action wherein defendant had set up a counter claim was removed from the state court to the U. S. circuit court. !:jubsequently another action, begun by the defendant in the first suit against the plaintiff, was also removed to the U. S. circuit court, and noticed for trial. At the time of the hearing in the second action lL motion was granted in the first action, and an order made, permitting the withdrawal of the counter claim. Held, that such an order, under the circumstances, did not defeat the plea in abatement in the second actiqn of another action pending between the same parties.
Jesse Johnson, for plaintiff. S. W. Holcombe; for defendant. BENEDICT, J. The counter claim made in the prior action and set up in the plea in abatement, is, in legal effect, an action by the plaintiff agains\ this defendant. Fettretch v. JlfcKay, 47 N. Y. 426. Being for the same cause of action as the present suit, it was properly pleaded in abatement and constitutes a good defence. Ins. Co. v. Brune's Assignee, 96 U. S. (6 Otto) 592. The order permitting the withdrawal of the counter claim in the former action, obtained since the issue was perfected in this suit, and after the same had been noticed for trial by the plaintiff upon the issues tendered by the plea-which order, of course, is not set up in the pleadings, having been obtained since the commencement of the term at which the canse was noticed for trial-is not sufficient to defeat the plea. The defendant is entitled to judgment dismissing the complaint.