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
defendant Mangles is a citizen of the state of New Jersey. It prays for the removal of the suit. It does not refer to any particular statute. It does not allege that the sllit is one in which there can be a final determination of the controversy so far as concerns anyone or more of the defendants as ties in the cause. Nor dOlls it allege that there is, in the suit, a controversy which is wholly between citizens of different states, and which can be fully determined as between them. To have the case considered as one removable under the second branch of section 2 of the act of 1875, or under any subdivision of section 639 of the Revised Statutes, thepetition must set forth the jurisdictional This petition alleges only that the controversy in the suit" Is between citizens of different that is to say, between the abov.enamed Bridget Smith, who is, and was at the commencement of this action, a citizen of the state of New York, and the above-named defendants, William Horton, who resides in the state of Connecticut, John F: W. .' Mangles, who is a citizen of the state of New Jersey, and Amos RClrark, a citizen of the state of New York.,"
Tl#s case, therefore, must be cODsidered as raising only the question whether a removal of it can be had on the peti o , tion filed under the first branch of section 2 of the, act 'of 1875. It is clear, under the dtlcision of the supreme oOUrt in Meyer v. Oonstruction 00. 100 U. S. 457, that it cannot. Although all the defendants unite in the petition, they are not all of them alleged to' be of a different citizenship from the plaintiff. The motion to remand made: by the plaintiff, is, for the foregoing reasons, granted, with:eosts to be, tax.ed.
rEDERAL· REPORTER. NORRIS
MINERAL POINT TUNNEL and others.
(Cirouit Court, 8. D. New York. April 23, 1881.)
REMOVAL-MISTAKE IN PETITION.
A case is removable, under the act of 1875, when the petition sets forth the necessary facts, although the removal is erroneousl)' prayed for under section 639 of the Revised Statutes. 2. SAME-AcT OF 1875. The act of 1875 is not repealed by the marginal refe..ence to the .same in section 639 of the second edition of the Revised Statutes.-
Motion to Remand. E. R. Mead, for plaintiff. J. F. Harrison, for defendants. BLATCHFORD, C. J. The only objection to the jurisdiction of this court herein is that the petition for removal made by the plaintiff states that he desires to remove the suit intothis court in pursuance of section 639, subd. 3, of the Revised Statutes of the United States, and that he did not file in the state court an affidavit as to prejudice or local influence, as required by tha.t subdivision. The prayer of thepetition is that the suit may be removed "pursuant to the aforesaid act." The petition states facts which make out. a case for removal under the th'st clause of section 2 of the act of March 3, 1875, (18 St. at Large, 470.) The plaintiff was, at the time the suit was brought, a citizen of Pennsylvania, and the defendants were then-some of themcitizens of New York, and the rest citizens of Massachusetts. The mistake in the petition, by referring to the wrong statute, is unimportant, when the facts set forth in it make a casefor removal under the act of 1875.The defendants contend that there is no existing statute, but section 639 of the Revised Statutes, under which a removal of a suit can take place; that in the second edition of the Revised Statutes, published in 1878, under authority of the act of March 2, 1877, (19 St. at Large, 268,) there is in the margin, opposite section 639, a reference to the act of
*See upon this point Ruckman v. Ruokman, 1 FED. REP. 587.