THE G. W. PRATT and THE
(District Oourt, E. D. New York.
COLLISION-DaMAGE-EVIDENCE OF UNSEAWORTHINESS.
On all the evidence in this case itwas held not to have neen proved that the libelant's boat was so old and unseaworthy as to prevent his recovering against the tug B., towing his boat, the damages which his boat sustained by collision with another, by fault of the B.
In Admiralty. Hyland cf; Zabr'ishie, for libelant. Beebe cf; Wilcox, for the Blue Bonnet. Benedict, Taft cf; Benedict, for the Pratt. BENEDICT, J. The collision which gave rise to this action was not caused by any fault on the part of the G. W. Pratt, bnt was caused by the fault of the Blue Bonnet, in attempting to pass out from pier 4, nearly across the tide, and ahead of the G. W. Pratt. The resnlt was that before she could straighten up in the tide she was carried by the tide down upon the Pratt, and so caused the damage to the libelant's boat. There must therefore be a decree in favor of the G. W. Pratt, and against the Blue Bonnet, unless the breaking of the libelant's boat by the collision was owing to its being too old and weak to sustain the ordinary pressure incident to navigation of this character. Upan this point there is testimony going to show that the libelant's boat was old and weak; but there is also proof that she had on board a cargo of coal, and that she had shown herself able to carry cargoes up to the time of the accident. It also appears that a survey of the damage caused by the collision in question was had, in which the claimants took part, and the report of that survey, while it designates the parts requiring to be repaired, nowhere alludes to any unseaworthiness or insufficiency of the boat; and one of the surveyors, when examined as a witness, says that the boat, with the repairs stated in the report, would be seaworthy. Moreover, one of the persons who held the survey on the boat, and who is called as a witness for the claimants, testifies that he would not hold a survey upon a boat that was unsea· worthy prior to sustaining the injury to be surveyed. I cannot, therefore, say that the testimony proves that the damages caused by the collision arose from the fact that the libelant's boat was not sufficient to endure the ordinary strain of navigation of this character. Let a decree be entered dismissing the libel as against the G. W. Pratt, and directing a decree in favor of the libelant against the BlUE! Bonnet, with an order of reference to ascertain the damages.
by R. D. & Wyllys Benedict, of the New York bar.
FIELD 0. \VILLIAMS.
(Oircuit Oourt, E. D. Wisconsin. June, 1885.)
REMOVAL OF CAUSE-TIME OF ApPLICATION-DECISION ON DEMURRER-REV. ST. § 639, SUED. 3.
A cause may be removed from a state court, under Rev. St. § 639, subd. 3, after a decision or ruling on demurrer. Alley v. Nott, III U. S. 472; S. C. Sup. Ct. Rep. 495, distinguished.
Motion to Remand. Ellis, Greene cf; Merrill, in support of motion. fVebster d Brazeau, contra. DYER, J. This case was removed from the state court to this court at the instance of the plaintiffs, and is now before us on a motion to remand. The plaintiffs are citizens of other states than Wisconsin, and one of them is an alien. The defendant is a citizen of this state. The suit is upon a judgment recovered byLhe former against the latter, November 1, 1879, in the superior court of Cook county, Illinois. Issue was joined while the case was pending in the state court. The answer of the defendant contains (1) a general denial of indebtedness upon the judgment; (2) an affirmative defense that the judgment war obtained by fraud; and (3) a counter-claim for damages. The plaintiffs demurred to the second defense, on the ground that it did not state facts constituting a defense to the action, and to the counterclaim, on the grounds that it did not state facts constituting a cause of action against the plaintiffs, and that its subject-matter was not pleadable as a counter-claim. The demurrer, so far as it related to the second defense, was sustained by the state court, and as to the counter-claim, was overruled. Subsequently the case was removed to this court. The removal was made pursuant to the third subdivision of section 639, Rev. St., which provides that "when a suit is between a citizen of the state in which it is brought and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if before or at the time of filing said petition he makes and files in said state court an affidavit, stating that he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court." The motion to remand was prompted by a suggestion of the court, when the case was called for trial, that there might be some doubt whether the case was removable, in view of the proceedings had in the state conrt, and is now urged on the ground that the application for removal was made too late. In Alley v. Nott, 111 U. S. 472, S. C. 4 Sup Ct. Rep. 495, it was decided by the supreme court that, as a demurrer to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, raises an issue which involves the merits, a trial of the issue raised by it is a trial of the acv.24F,no.9-33