such prejudice or local influence as will preclude a defendant from obtaining justice in the state court. This is a question of fact which, like all other questions of fact, may be determined by the evidence produced by both parties at the hearing of a motion to remand the cause. It would be an insult to the intelligence and integrity Of the state court from which this suit was removed-a tribunal which highest original jurisdiction-to adjudge that the defendant, 'upon the showing made in his affidavit, will, not be able to obtain justice in that court. The motion, to' remand is granted" with costs.
(Oif'euit Court, S. D. NeuJ York. April 16. 1889.)
REMOVAL Oll' CAUSES-LoOAL PREJUDIOE-REQUISITES 011' ApPLICATION.
Under act Congo March 8, 1887, providing for the removal of controversies between citizens of different states on the application 'of a defendant when 'it shal1be "made to appear" that a fair trial cannot be had in the state court wherein the action is pending, or other to which it may btl removed under the state law, it is not suflicient' that defendant swears positively that such prejudice. etc., exists so as to render a fair trial in any state court impossible,without showing the facts on which the averment Is based. as the act mentioned is a substitute for the act of 1867, which only requ;ired the belief of the applicant in such prejudice to'beshown.
Philip aupenter, for petitioner. LACOMBE, J. This is an application for a certiorari upon a petition and affidavit, stating that defendant "has reason to believe, and does believe, that from prejudice and local influence he will not be able to obtain justice in the state eou.rt in which the action is brought, or in any other state court to which he may able to remove the action." Defendant seeks to remove the cause from the supreme court of the state into this court. The questhm whether, since the passage of the act of March 3, 1887, he is entitled to do so upon an affidavit such as that now submitted, has been the subject of judicial consideration in several cases. P.sk v. Henarie, 32 Fed. Rep: 417; Hilla ,v. Railroad Co., 33 Fed; Rep. 81; Short v. Railroad, Id.114; Whelan v. Railroad Co., 35 Fed, Rep. 849; SouthworlJl,v. Reid, 36 Fed. Rep. 431; HU8kina v. Railway Co., 37 Fed. Rep. 504. In the Fifth, Sixth, and Ninthcircuits it has been held that a defendant can remove his ca.use on such ltn "affidavit. In the Seventh and Eighth circuits ithns been' held that he, ,cannot. I concur in views expressed byJudge BREWER in Short v.Railroad, that the actof 1887 with respect to prejudice and local in"finence,was intended to Bupersedeentirely the act of 1867, and to plant. :the matter upon a new basis; and that before a removal can be had on the ground of prejudice or loeaJ influence there must be shown to the. .'circuit court of the United States the existence of such prejudice or local
influerice.The affidavit in the case at bar is open' to the same ()bjeetion as that which was considered by JudgeEREwER. Itllll;lkes nothing apparent to the circuit court save that the defendant believe!,! he will be prejudiced, which, 'under the phraseology of the new terially changed as it is from the act of 1867 ,-is not sufficient. ON SECOND APPLICATION. (April 18,1889.) . LACOMBE, J. The defendant since the filing of decision on April 16th, has presented another affidavit made by himself, in 'which he says that from prejudice and local influence he will not be able to obtain justice in the supreme court of New York in New York county, or in any other state court to which he may under the laws of the state have the right on account of such prejudice or local influence to remove the cause, and adds" I state unqualifiedly that such prejudice and local influence actually exists so that a fair trial cannot be had in the state court." Being satisfied (as indicated in the memorandum filed on the 16th) that the act of 1887 effected a radical change in the procedure for removal, I fail to see that the affidavit now filed is sufficient to "make it appear" to this court that. defendant cannot obtain justice in the state especially in view of the provisions of section 987 of the New York Procedure, authorizing a change of the place of trial wherever there is reason to believe that an impartial trial cannot be had in the proper county. See Southworth v. Reid, 36 Fed. Rep. 453.
HURD ". GERE et ale , (Oircuit OO'U'I't, N. D. NetJJ York. April 15, 1889.)
Where a defendant, atter the time to answer has expired. procures an ll:ll parre orl,ler'extending his time. contrary to the practice lD the state court. and th&n files 'an application for removal. the application iBnot flIed. within the meaning of the removal act of March 3. "before the defendant is required by the laws of the state or the rules of the state court" to answer the complaint.
On Motion to Remand. Hamilton Ward, for plaintiff. Tracy,MacFarland, Boardman
Platt, for defendants.
WALLACE, J. The order of the state court, extending the time of the defendants to answer the complaint. having been made after the time to answer had expired, without notice to the plaintiff of the application, was doubtless irregular; but it was not void, although the court might have vacated it upon the application of the plaintjff, aud· it would then have beeu regarded as a nullity, ... Nevertheless, it would