v.· LAKE SH()RE & M. S. By.1
December 28, 1883.)
(Ui'l'cuit Court, $. D. New York.
REMOVED CAUSE-JURISDICTION OF STATE COURT-DETERMINATION OF CONTROLLING JUIUSDICTlONAL ISSUE NOT PROPEHLY HAD ON MOTION FOR SECURITY FOR (JOSTS.
An action having. been begun in a state court, under a state statut.e giving that court jurisdiction of such·actions when <brought against a foreign corpora.tion, provided the plaintiff be a resident ·of the iltate, the answer averred, as an ohject.ion to the jurisdiction, that .,he plaintiff was not a resident of the state. '1'he defendant having removed the action to this court, moved for security for costs 011 aifida vits te1lding to show such non-residence of the plaintift, which were met. by counter affidavits. Held, that the issue thus presented was one of the issues of the cause presented by ,the pleadings and was control. ling; for if the action would fail in thtl state court on account of the plaintiff's 1l0p.-residenGe, it would fail in. thiscourt; and that the determination of a jurisdictional fact, which might involve a dismissal of tile nction, could not properly be sought' by a motion on affidavits, but should be left to abide the trial o( the issue by the answer·.
Motion.to Compel Secqrity for Coats. C.Fer[JU/lOn, Jr., for plaintiff. Burrill, Zabriskie cV Burrill, for defendant. BENEDICT, J. This case comea the upon a motion on the part of the defendant to compel security for costs, upon theground that the plaintiff is a. non-resident: The action was commenced in the supreme court of the state. The complaint filed in the state cqurt that the defendant is.a foreign corporation. By a ute, of the state, the supreme court of the state has jurisdiction of actions like the present when brought against foreign corporations, provided .the plaintiff be a resident of the state, not otherwise. The answer filed in the state court averred, by way of objection to the jurisdiction, that the plaintiff was not a resident of the state of New York, but of England. Thereafter, the defendant removed the case to this court, and now moves for security for costs upon affidavits tending to show the plaintiff to be a non.resident of the state. Counteraffidavits are read in support of the plaintiff's averment that he ia a resident. The issue thus raised is the s.ame raised by the defendant's answer. It is one of the issues of the cause presented by the pleadings while the cause was in the state court. This issue tendAred by the defendant's answer is, moreover, controlling; for if the defendant be a non-resident, as the answer asserts, the action would have failed in the state court for want of jurisdiction, and must therefore fail here, notwithstanding the plaintiff, if a non-resident, may also be an alien, and the action, for that reason, one which this court is competent to entertain. For it is the cause instituted in the state court which is to be determined by this court, and the plaintiff's residence, if fatal to the action in case it had remained in the state court, must
Reported by It D, & W,rllys Benedict, of the New York bar.
NORTH RIVER 005STBtJOTION 00.
The defendant, therefore, by the present motion, seeks the determination of a jurisdictional fl1Ct, which determination, if in accordance with the defendant's contention, would involve a dismissal. of the action. Such a determination cannot, in my opinion, be pxop. erly sought in this manner by It motion upon affidavits, but should be; left to abide the result of the trial of the issue presented by the answer. ' Motion denied.
be fatal here.
MOORE and others v. NORTH RrvER CONSTRUOTION Co. and others.
Win-uit Court, N. D. NetIJ York. April 8, 1884,)
JunISDTCTION OF FEDERAL
Where citizens of New York, who are creditors of a New Jersey corporation, bring suit in the nature of a creditor's bill to reach real estate which they allege was fraudulently and unlawfully conveyed to a New York corporation, no relief demanded against. the New JerRey company, held, that there was no separate controversy bel ween citizens of different states such as to give jurisdiction to the United States courts.
On Motion to Remand. Edward W. Paige and Alonzo P. Strong, for plaintiffs. P. B. McLennan, Otto T. Bannard, and Albert B. Boardman, for defendants. COXE, J. The plaintiffs are citizens of New York. The defendant, the North River Construction Company, is a New Jersey corporation. The other two defendants are New York corporations. The plaintiffs are creditors of the construction company. There being no pleading before the conrt but the complaint, it must be the sole guide in determining the character of the action.. The relief demanded is that certain real estate alleged to' have been paid for by the construction company, when insolvent, and conveyed direct to the railway company in fraud of the plaintiffs' rights, he sold to satisfy their claims. Also that an injunction issue restraining the defendants from dispoaing of or incumbering the land. No judgment is asked against the construction company. Because the plaintiffs are not judgment creditors, it is argued that there is a controversy between them and the construction company, and that this court therefore has jurisdiction. In one sense, undoubtedly, this is true, but is it such a controversy as is contemplated by the statute? Is it, to use the language of the chief justice ir;: Hyde v. Ruble, 104 U. S. 409, "a separate and distinct cause of action?" Does the complaint state two causes of action or one? No separate judgment could be entered against the construction como. pany. Should the trial court find on the main issue that there were no purchases of land as alleged, the complaint would be dismissed as