Wickham v. Wickham

Decided February 15, 1880

New York Supreme Court · decided 1880-02-15

The motion to remove the case was based on chapter 196, Laws of United States of 1867 (sub. 3 of § 639 of U. S. Revised Statutes), allowing a removal in suits between citizens of different States, when the applicant for removal believes that from prejudice or local influence he will not be able to obtain justice in the State court. Chapter 196 of 1867 was not repealed by chapter 137 of 1875.

Decided 1880-02-15

Per Curiam :

¶1So far as this application rested in discretion, it was passed upon favorably by the judge at Special Term. The subsequent order vacating the order of removal was based upon the theory that the act of 1867 (14 U. S. Stat. atL., p. 558,. chap. 196) is not in force. This we think to be error. The act of 1875 (1.8 U. S. Stat. at L., pt. 3, p. 470, chap. 137) does not in terms repeal the act of 1867, and as they are not in conflict, a repeal by implication does not take place. Such appears to be the current judicial opinion. The order of 15th of October, 1879, should be reversed and the cause stand remanded to the United States Circuit Court, pursuant to the order of the 28th of July, 1879.

¶2The question is quite new and not free from doubt and no costs should be granted.

Present — Gilbert and Pratt, JJ.; BarNAEd, P. J., not sitting.

¶3Order reversed, without costs.