Maloy v. Duden

• Decision Date: 19 December 1885
• Parties: MALOY v. DUDEN and others.
• Court: U.S. District Court — Southern District of New York

25 F. 673

MALOY v. DUDEN and others.

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

December 19, 1885

Jas. M Lyddy, for plaintiff.

Ira L Bamberger, for defendant Duden.

Frankenheimer & Rosenblatt, for defendant Baillie.

E. C Jones, of counsel for defendants.

BROWN J.

This cause, originally commenced in the supreme court of the state of New York, was removed to this court on the ground that the defendants were foreign citizens and subjects, the plaintiff being a resident of this state. A motion is now made to remand the cause.

1. The first ground on which a remand is claimed is because the defendant H. Duden, a naturalized citizen of Great Britain some two years ago filed his declaration of intention to become a citizen of the United States. He has never applied for or obtained admission to be a citizen of this country, or his final certificate of naturalization. This point has, in substance, been directly adjudicated by Mr. Justice MILLER in the case of Lanz v. Randall, 4 Dill. 425, and overruled on the ground that the foreign citizen or subject remained such until naturalization was complete according to the laws of congress, although, by the state laws, he might vote or hold office after the mere declaration of intention to become a citizen. The passport issued by Earl Granville to this defendant, in 1880, as a British citizen, together with the defendant's affidavit, furnish sufficient prima facie evidence that the requirements of the English statutes of naturalization had been complied with. No renunciation of allegiance to Great Britain was required by our law (section 2165) to be made at the time of the declaration of intention to become a citizen of the United States. If such a renunciation was made at that time, it was immaterial, and so far as appears did not make the defendants cease to be citizens of Great Britain.

2. The second ground upon which the motion to remand is urged is that the cause was removed too late, to-wit, after the trial in the state court had been commenced. The case had been noticed for trial by the plaintiff, and placed upon the equity calendar. It was called upon the call of the day calendar on November 2d. The defendants, among other objections, contended that the cause was not in a condition for trial, because the time for serving an amended answer had not expired under an order obtained from one of the judges of the court granting further time for that purpose. The plaintiff, before the call of the cause on the day calendar had given notice of a motion to vacate the order granting the further time to answer. Upon the statement of these facts to the trial judge, he directed the motion to vacate to be heard in another part of the...