Groton Bridge & Manufacturing Co. v. American Bridge Co.

• Decision Date: 06 May 1905
• Citation: 137 F. 284
• Parties: GROTON BRIDGE & MANUFACTURING CO. v. AMERICAN BRIDGE CO.
• Court: U.S. District Court — Northern District of New York

137 F. 284

GROTON BRIDGE & MANUFACTURING CO. v. AMERICAN BRIDGE CO.

United States Circuit Court, N.D. New York.

May 6, 1905

Jones McKinney & Steinbrink, for the motion.

Stetson Jennings & Russell (Chas. MacVeigh and Raynal C. Rolling, of counsel), opposed.

RAY District Judge.

This action, venue laid in Tompkins county, was commenced in the Supreme Court of the state of New York by the personal service of the summons and complaint upon the secretary of the defendant on the 11th day of November, 1904. Jones, McKinney & Steinbrink, as attorneys for the plaintiff, brought the action. November 29, 1904, and within 20 days thereafter, the defendant appeared generally by Stetson, Jennings & Russell, its attorneys, and, before the expiration of the time given by section 520 of the Code of Civil Procedure of the state of New York to plead to the complaint had expired, obtained from the plaintiff's attorneys a written extension of time to plead to the complaint, viz.:

'Supreme Court, Tompkins County. Groton Bridge and Manufacturing Company vs. American Bridge Company. It is hereby consented that the time of defendant, American Bridge Company, to plead to the complaint herein be extended twenty days from December 1, 1904, to and including December 21, 1904.

Jones, McKinney & Steinbrink, Attorneys for Plaintiff.'

December 21, 1904, plaintiff's attorneys gave to defendant's attorneys a second written extension of time to plead, which, aside from title and signature, reads as follows:

'It is hereby consented that the time of the defendant to plead to the complaint in this action be extended to and including January 10th, 1905.'

December 27, 1904, the defendant, a business corporation organized under the laws of the state of New Jersey, the plaintiff being a business corporation of the state of New York, and the amount demanded, exclusive of interest and costs, being over $35,000, made its petition, duly signed by it, by Joshua A. Hatfield, the vice president of the defendant, for the removal of the suit to the Circuit Court of the United States for the Northern District of New York. Following the petition, and constituting a part of it, is the usual affidavit of verification required by the Code of Civil Procedure of the State of New York for verified pleadings, etc. This affidavit reads as follows:

'State of New York, County of New York-- ss. Joshua A. Hatfield, being duly sworn, deposes and says that he is an officer, to wit, the vice president, of the American Bridge Company, the petitioner named in the foregoing petition; that he has read the same, and knows the contents thereof; and that the same is true to his own knowledge, except as to the matters therein stated upon information and belief, and as to those matters he believes it to be true.

'Sworn to before me December 27th, 1904.

'(Seal.) James Henderson, Notary Public, Richmond County.

'Certificate filed in New York County.'

It was not signed by Hatfield, but, as appears, was certified to have been sworn to by him as follows:

'Sworn to before me December 27th, 1904.

'James Henderson, Notary Public, Richmond County.

'Certificate filed in New York County.'

The petition was accompanied by a bond or undertaking in the penal sum of $500, duly signed and executed by the American Bonding Company of Baltimore, and conditioned as follows:

'Upon these conditions: American Bridge Company having petitioned the Supreme Court of the state of New York held in and for the county of Tompkins for the removal of a certain cause therein pending, wherein the said Groton Bridge & Manufacturing Company is the plaintiff and the said American Bridge Company is the defendant to the Circuit Court of the United States for the Northern District of New York.

'Now, if the said American Bridge Company shall enter in 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, then this obligation to be void; otherwise to remain in full force and virtue.'

The petition and this bond were presented to the judge hereafter named, and filed with the clerk as hereafter stated. This bond or undertaking was not signed by the defendant, or by any of its officers. It bears the following indorsement:

'The within undertaking is approved as to form and as to the sufficiency of the surety.

'Dec. 28, 1904.

William D. Dickey, J.S.C.'

William D. Dickey was one of the justices of the Supreme Court of the state of New York at this time. The petition, bond, etc were duly filed in the office of the proper clerk of the Supreme Court of the state, the county clerk of Tompkins county, N.Y., on the 30th day of December, 1904, and a copy of the same and of the record on removal were served on the plaintiff's said attorneys on the same day. The defendant filed a copy of the record in such suit in the Circuit Court of the United States, Northern District of New York, on the first day of its next session, viz., February 14, 1905, as required by law and the condition of such bond or undertaking. The petition on removal bears no indorsement of the judge, but the bond recites that the defendant has petitioned, etc., and that bears the indorsement and approval of the judge. February 14, 1905, the plaintiff moved to remand. The plaintiff concedes and says in his brief on this motion:

'On December 28, 1904, it (defendant) presented to Mr. Justice William D. Dickey, then sitting in chambers, at Brooklyn, Kings county, in the Second Judicial District, the undertaking by a surety company, subsequently filed in this proceeding.'

The county of Tompkins, in which the venue of this action was laid in the Supreme Court, is in the Sixth Judicial District. The plaintiff's counsel also says in his brief:

'Mr. Justice William D. Dickey is a justice of the Supreme Court in and for the Second Judicial District. On December 28, 1904, he was sitting in Kings county, in that judicial district.'

The plaintiff appears in this court specially for the purposes of this motion only. It bases its motion to remand on five alleged grounds, viz.: (1) Because the petition for removal and alleged bond were never presented to the state court. (2) Because no bond whatever has been filed by the defendant; that is, the one filed is not a bond satisfying the removal act, because not signed by the defendant. (3) Because the liability on the bond filed (if it is a bond) is limited to $500. (4) Because the defendant elected to submit itself to the jurisdiction of the state court at the time when it was required to plead in that court to the jurisdiction or in abatement by entering a formal voluntary appearance and thereafter procuring extensions of time to plead-- that is, time to demur or answer on the merits-- in the state court. (5) Because the time of the defendant to remove the cause to the state court had expired prior to the filing of the petition and alleged bond.

The removal act, first part of section 3 of the act of August 13, 1888, c. 866, 25 Stat. 435 (U.S. Comp. St. 1901, p. 510), provides:

'That whenever any party entitled to remove any suit * * * may desire to remove such suit from a state court to the Circuit Court of the United States, he may make and file a petition in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the Circuit Court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such Circuit Court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said Circuit Court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit of special bail was originally requisite therein. It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit; and the said copy being entered as aforesaid in said Circuit Court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said Circuit Court.'

As to the first objection-- that the petition and alleged undertaking were never presented to the state court-- it clearly and sufficiently appears that the petition and undertaking were presented to the state court. The plaintiff admits in his brief, as we have seen, that Judge Dickey was sitting in chambers when he approved the bond or undertaking and, as the bond recites that the defendant had petitioned for a removal of the cause to the Circuit Court of the United States, and as the bond was given and its approval is that both the petition and undertaking were before the judge when he indorsed his approval on the bond. A judge sitting in chambers constitutes a court when doing ex parte business certainly, and a presentation of a petition and bond for removal to a judge of the Supreme Court sitting in chambers must be sufficient within the intent and meaning of the removal act. Were it otherwise it would be within the power of parties bringing actions in the state court to defeat removal entirely. It frequently happens that during the month of August the Supreme Court of the state of New York has no regular appointed term or adjourned term of the court...