COOKE V. SELIGMAN.
the owner of the property must join in bringing the action, as having a united interest in the cause of action and in the recovery sought. The decision in Barney v. Latham does not, as I conceive, affect the conclusion reached in the pres· ent case, because here there is no such separable controversy between citizens of different states as brings the case within the principle and scope of that decision. Motion to remand granted, and order accordingly.
Circuit Court, S. D. New York. February 5,1880.)
REMOVAL-WHO ARE" DEFENDARTS" UNDER SECTION
1875. Where, in a suit between a foreign citizen and citizens of various states, the petition for removal is made by all the defendants except X., the petition makes out a case for removal under the first clause of section 2 of the act of 1875, as being a suit where all parties defendant have applied for the removal, if X. is an unnec ssary and improper party, the complaint making no case on which X. could claim the relief demanded, and although the petition may be framed so as to , attempt to make out also a case under the second clause of the same section 2.
SAME-PETITION BY ATTORNEY.
The objection that the petition for removal was made and filed by the attorney of the defendants is of no force in this court, althouglJ section 3 of the act of March 3,1875, provides only that a "party - · may make and file a petition."
SAME-AVERMENT OF PERSONAL CITIZEKSIUP.
The averlI\ent of the petition for removal that the defendants (naming them) "as they are the qualified executors of the last will and testament of Y., deceased," were and are citizens, etc., is a suffi. cient averment of personal citizenship, and should not be construed to refer to their official citizenship as executors.
SAME-DUE ExECUTION OF BOND.
The want of acknowledgment or proof of the execution of the bond for removal is a matter of practice for the state court to pass upon, and cannot be reviewed by this court after the state court has accepted the bond.
6. SAME-CONDITION OF BOND.
The clause in the condition of the bond for removal providing that the defendants shall" do, or cause to be done, such other and appro.priateacts," etc., is a sufficient compliance with any requirement in section 3 of the act of 1875 that the bond shall be onc for appearing in the federal court.
Motion to Remand. Cla1'e1we A. Seward and Charles M. Dacosta, for plaintiff. Clarkson N.Potter and J. G. McCullough, for defendants. BLATCHFORD, C. J. Although the complaint avers that Wostenholme owns a number of the bonds, it does not aver that he makes any claim in respect of them, on account of any matters alleged in the bill as matters on account of which the plaintiff makes a claim in respect of bonds. Nor does the plaintiff sue on behalf of Wostenholme, or claim to represent him as respects any claim made on the other defendants, or any of them. On the whole scope of the bill, the words" similarly situated," in the preamble to the complaint, and in paragraphs 14 and 16, and in subdivisions 1,2, and 3 of the prayer, mean the original allottees, called also takers in paragraph 14. Subdivisions 1 and 2, of the prayer, pray no relief for the benefit of Wostenholme, nor does subdivision 3. That subdivision only prays that the moneys to be accounted for may be refunded for the benefit of the original allottees, of whom Wostenholme was not one. It does not pray that such moneys be refunded for the benefit of the original allottees, and holders not original allottees, leaving such moneys to be distributed afterwards. Therefore, the complaint makes ho case on which persons not original allottees could put in any claim to any moneys refunded. So that part of the prayer of subdivision 3 which relates to the superior right of the original allottees is to be rejected as surplusage, and Wostenholme stands as an unnecessary and improper party to the suit, and no real and actual party. This being so, it follows that the suit was removable, under the first clause of section 2 of the act of 1875, as being a suit in which there is a controversy between citizens of various states of the United States and a foreign citizen or subject, and where all the parties defendant have applied for the removal, and wher3
such controversy is the only controversy there is in the suit. The petition for removal makes out a case under said first clause, although it may be framed so as to attempt to make out, also, a case under the second clause of the same section. It is alleged that there are certain defects on the face of the petition and the bond which invalidate the removal. The petition in tpe body of it purports to be the petition of all of the defendants, except Wostenholme, by the same names and designations as set forth in the caption or title of the suit in the summons and in the complaint in the state court. In such caption or title, among the names of the ax", these:
"James M. Brown, John Crosby Brown, Howard Potter, and .John S. Schultze, as they are the qualified executors of the last will and testament of James Brown, deceased."
An aggregation or list of the names of the defendants is not found in any place in the summons or complaint, except in such caption or title. The complaint states- .
That James Brown, by his will, appointed "the defendants James M. Brown,John Crosby Brown, Howard Potter, and John S. Schultze," with two other persons, "his executors," and that letters testamentary were issued" to the defendants James M.. Brown, John Crosby Brown, Howard Potter, and John S. Schultze, as the qualified executors of the last will and testament of the said James Brown, deceased."
The petition is preceded by the title or caption of .the suit, giving the name of the plaintiff and the names of all the. defendants, and in it, among the latter"James M. Brown, John Crosby Brown, Howard Potter, and John S. Schultze, as they are the qualified executors of the last will and testament of James Brown, deceased."
The petition states" That the controversy in said suit is between foreign citizens or subjects, and citizens of different states of the United States;" that of the defendants, sundry ones named, and among them "John Crosby Brown, individually, [he being named by that designation as a defendant in the title tothe summons and in the title to the complaint and in the title to thepetition, and as a petitioner in the list of petitioners in the beginning of the body of the petition,] and James M. Brown, John Crosby Brown,. and Howard Potter, as they are the qualified executors of the last:Will and testament of James Brown, deceased, were each and all at the time of the commencement of this suit, and still are, citizens of the stata of
New York, and that the defendant John S. Schultze, also a qualified executor of the last will and testament of James Brown, deceased, was then and still is a citizen of the state of New Jersey."
Among the signatures to the petition are these:
"James M. Brown, George H. Brown, John Croshy Brown, Howard Potter, by James M. Brown, attorney, John S. Schultze, as the qualified executors of the last will and testament of James Brown, deceased,"-the names being under each other, and included in a bracket at the left of said designation: also" Trenor W. Park, by J. G. McCulrough, his attorney:" also" Isaac Seligman, by Joseph Seligman, attorney;" also" Leopold Seligman, by Joseph Seligman, attorney;" also "Henry Seligman, by Joseph Seligman, attorney:" also "Abraham Seligman, by Joseph Seligman, attorney;" also" William Seligman, by Joseph Seligman, attorney;" also CIA. A. Selover, by Billings & Cardozo, attorneys;" also" W. Watts Sherman, by Bristow, Peet, Burnett & Opdyke, attorneys;" also "George H. Brown:" also "John Crosby Brown." The petition was sworn to by the defendant Park.
The condition of the bond offered to the state court isThat the obligation shall be void" if the said petitioners shall enter in the said circuit court of the United States, on the first day of its next session, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said circuit court of the United States, if said court shall hold that said suit was wrongfully or improperly removed thereto, and do or cause to be done such other and appropriate acts as, by the acts of congress approved March 3, 1875, and other acts of congress, are required to be done upon the removal of a suit into the United States circuit court from a state court."
The bond is not acknowledged or proved. On the twenty-first of October, 1879, the state court made an order in the suit. The title of the suit in the order gives the names and designations of the defendants as in the title to the summons and the complaint. It says:
"A petition having been duly made and filed in this suit by the several defendants"-naming the petitioners by the same names and designations as in the body of the petition-"on this twenty-first day of October, A. D. 1879; praying for the removal thereof into the circuit court of the United 'States for the southern district of New York, and said defendants and petitioners having duly made and filed therewith a bond, with good and sufficient surety, for their entering in such circuit court, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that this suit was wrongfully or improperly removed thereto, and for doing such other and appropriate acts as required pursuant to the statutes of the United States in such case made and provided, now, upon motion of John G. 1l1cOuliough, Esq., of counsel for the petitioners, it is declared that it
is made to appear to the satisfaction of this court " " " " ·. and that the controversy therein is wholly between ltn and citizen and subject of the united kingdom of Great Britain and Ireland, and citizens of different states of the United States of is to say, between the above-named plaintiff, who is a citizen and subject of the united kingdom of Great Britain and Ireland, and the above-named defendants and petitioners, who are citizens of different, states of the United States of America; .. .. .. and it is further declared and ordered that this court doth accept the said petition and bond so'made and filed as aforesaid, and that the suit be removed for trial into the next circuit court"'Of the United States, to be held in the southern distriCt of New York, and that this court proceed no further therein, and that all proceedmgs in this court in the said cause be and the same arc hereby stayed."
These views cover the objection made 'in the present case. Although the plaintiff does not seem to have had prior notice of the application to the state court for the removal, the contents of the petition and bond, and the action of the petition-
ers, by their counsel,inmoving for the order which the state court made, and the contents of such order, show that the objection made is of no force in this court. 2. It is objected that the petition does not show that James. M. Brown and Howard Potter were and are personally citizens of the United States, or of any state thereof, and that the averment is merely that they, "1II · · as they are the 'qualified executors of the last will and testament of James Brown, deceased," were and are citizens of the state of New York. The case of Amory v. Amory, 95 U. S. 186, is cited. In that case certain per90ns,as executors,brought a suit in a 'state court of NewYQrk agl1insta citizen of Ne"i Jersey. The "dMendant, . in ,hts ' for' removal; "that .'said pla'intiffs,lts s'uch executors, are citizens' 6f the state of 'New 'York. j, 'TliVCDurt said: " ' . '! , ..
·; . :': j r;: ,1.i"
. of 'the 'Umted depends upon the CitIzenshIp of It has refertb':thlJ blttties 'pt!rSons, :'A'':(\etiHon' for ieinoLvahmist,therefore, ,peEB/JJ¥tl,<iitizenship ·of .the parties/and not their official citizen· spip,t, .t\u1fe ,8ithing. FrQp1! the lJ,ere employed, the !1Jar proIJcrly infer that, the defend.ants in errqr.",ere ·ttbHitizlms of New Y61'1<," For 8.'11' that itp'pears, they may have 'been riiUzeJlBOf New'Jel'Sey;aB thedefelldant:, iHolding, as we do, that a ,!:loUflPtto1surrenqllr itll· jurisdiction, upon a petition for yntil is. which, upon its face,shows, the ,. h/tht· of'the petItIoner to the transfer, It was not errol' for the court to retain these cause'B,:" ;, ; .
The facts of the present case do not bring it within the in 'l';;;,ory :v.'Amory. The expressioJil, "as they are iliequalifi.ed exeontors," etc., introduced by the plaintiff in the title of the suit,' and strictly followed afterwards, is fairly !-o be· meaning and' re,ading, "sued as qualified executors," etc; The petition is fairly to he read as averring that James M. Brown and Howard Potter, sued as executors, are .citizens, etc.; meaning that they, personally, sued as executors, are citizens, etc. The averment as to James M. Brown and Howard Potter must be taken in the same se,nse as the averment as to Schultze, which is that he, "also a qualified executor," is a citizen, etc., and as averring sub.:>tantially that they, qualified executors, etc., are citizens,
,·OooKE V. SELIGMAlIf.
etc., rejecting the words "as they are" as surplusage. Then there is the averment of the petition that the controversy is "between foreign citizens, or subjects and citizens of different states of the United States," taken in connection with the above-cited averments in t.he complaint and the of the state court, in the order, as to the citizenship of the defendants, which must be held to refer to their personal citizenship, showing the interpretation given by the state court t<>; theaverm,ents of the petition, and the fact that the state court surrendered its jurisdiction. The could not properly infer, and did not infer, nor can this:court infer, that as persons JamesM. 'Brown and Howard: Potter were , .. . ,. not citizens of New York. 3. The want of of the bond was a matter' of for.the 'coUrt to upon, J wfifnot'b'e ; by the
j · ,
, i '.
objected that' thk condltionLot the not Ii'" t .r provide for the defendants appearing in th!s and' enteripg, copdjtion, proviWQg that 'the defetiaant shall to'bed-one Bucnother.lOin'd appropriate' etc;i' i's";a;'sufficienf tl(}wpliaticewith 'any
shall be one for appearingdin .thefederalcollrt., ThertlOtion to remandthe'catise to the statec'ourt isderiied.
REl'. 545,' and HerfJey'v. R. Uo. Id. :707. '
'See in' relation
February 12, 1881.)
(Oircuit Oourt, S. D. New York.
REMOVAL-PETITION-ALLEGATION OF JURISDICTIONAL FACTS.
A cause is not removable under the act of March 3, 1875, or section 639 of the Revised Statutes, unless the petition for removal sets forth the jurisdictional facts.
BAME-SAlIE.,.-ALLEGATION OF CITIZENSHIP.
In a su'it against copartners for damages for injury to the person, a removal cannot be had under the first clause of section 2 of the act of March 3, 1875, unless the petition alleges that all of the defendants are of (lifierent citizenship from the plaintUf.- [ED.
F. W. Fitzgerald, Jr., for plaintiff. G. S. Simpkins, for defendants. BLATCHFORD, C. J. This suit was brought in a court of the "tate against the defendants, as copartners, to recover $8,000 as damages. injury to the person of the plaintiff. The complaint alleges'
That· the plaintiff was. passing along the sidewalk in front of the defendants' place of business, where' they buy and sell flour j that the defendants were, at the time, taking barrels of flout into their said store from a truck standing near the curbstone, and in front of said store j that they obstructed the sidewalk and made it dangerous and created a nuisance, in that they allowed a person on said truck to negligently roll bar. relsof flour down a pair of skids j that a barrel struck the plaintiff while she was passing between the store and the truck, and using due care; and that she was thereby irreparably and permanently injured in her person.
All three .of the defendants.in tiIlle filed, in the state court, a petition for the removal' .of, into this court. The petition is framed exclusively under the first branch of section 2 of the act of March 3, 1875, (18 St. at Large, 470,) and not at all under the second branch of that section, nor under any subdivision of section 639 of the Revised Statutes. It alleges that the plaintiff is a citizen of the state of New York; that the defendant Horton resides in the state of Connecticut, not that he is a citizen of that state, or that he is an alien or a citizen of any state; that the defendant Clark is a citizen of the state of New York; and that the