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Woolf v. Chisolm and others.

(Circuit Court, S. D. New York.

May 27, 1887.)

Removal of Causes — Phaottoe—Petition—'Time fob Filing.

Under the act oí congress of March 3, 1887, which restricts the right of removal of an action from a state court to tho United States circuit court, as it then existed, a defendant must file his petition within the time in which, by the laws of the state or the rules of tho state court,, he is required to fUe his original answer or plea, and not within tho time when he is required or may elect to file an amended answer.

On Motion to Romand. At law.

Van Duzer & Taylor, for plaintiff.

Dos Passos Bros., for defendants.

Wallace, J.

It was the obvious purpose of tho act of March 3,1887, to restrict the right of removal of an action from a, state court to tho circuit court, as it then existed. The right is restricted as to the parties who can exercise it, as to the classes of actions in which it may be exercised, and as to the time at which ail election to exereiso the privilege must be made. The defendants now invoke this act to give them tho privilege of removal under circumstances in which it did not exist previously. They liad elected not to remove, and had waived their privilege before the new act was passed, by waiting until after the February term of the state court, the term at which the action could have been tried within the meaning of the former removal act. Subsequently, the pleadings ■were amended, and the defendants filed a petition for removal with their amended answer.

By the true construction of the new act, a defendant must file his petition within the time in which by tho laws of the state or the rules of the state court ho is required to serve or file his original answer or plea, not within the time when he is required or may elect to file an amended or supplemental answer. The defendants, therefore, have not complied with the conditions upon which their right to remove depends. Much less can they rely upon the language of the new act to revise a lost right of removal. The motion to remand is granted.

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