Davies v. Lathrop

• Decision Date: 09 March 1882
• Citation: 12 F. 353
• Parties: DAVIES and another, Adm'rs, etc., v. LATHROP, Receiver, etc.
• Court: U.S. District Court — Southern District of New York

12 F. 353

DAVIES and another, Adm'rs, etc., v. LATHROP, Receiver, etc.

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

March 9, 1882

B Loewy, for plaintiffs.

R. W De Forest, for defendant.

BLATCHFORD C.J.

This suit was begun in the supreme court of New York in August 1879. It is brought to recover $5,000 damages for the death of the intestate of the plaintiffs caused at South Amboy, in New Jersey, by a train on the railroad of the Central Railroad Company of New Jersey, in June, 1879, while the road was being operated by the defendant, as receiver of the company, through his employes who were running the train. The complaint is manifestly framed on a liability of the defendant in a court of New York, under a statute of New York. The complaint alleges that the defendant 'is receiver' of the railroad, 'a corporation which was doing business in fact under the laws of this of this state having its principal office, now the office of said receiver, in said city of New York;' that 'he became receiver duly by appointment of court;' that 'as such receiver' he was, in June, 1879, managing and operating the road; and that 'while so operating said road' he, through his employes engaged in running a train on said road, killed the intestate by negligence at South Amboy. The complaint then states that the suit is brought for $5,000 damages done by such killing to the next of kin of said intestate, a son and her husband, and that the 'plaintiffs, as her personal representatives, for the benefit of and as compensation for injury done to her next of kin, and under the statute of said state of New York, pray judgment for the full amount, to-wit, said amount of $5,000 statutory damages, against said defendant, as well as for costs of this action, permission to bring which was given to plaintiffs by order of this court August 20, 1879; or, likewise for the benefit of those indicated by said statute, plaintiffs, as such representatives, pray judgment against said defendant for such relief as to the court shall seem just. ' This complaint does not say that the defendant was appointed receiver by a court of New York, it alleges permission given by the supreme court of New York, it alleges permission given by the supreme court of New York to bring the suit. The suit, as made by the complainant, must be regarded as one brought on a statute of New York against the defendant as a New York receiver.

In August, 1879, the defendant put in, in the state court, an answer to the complaint, alleging that he was duly appointed receiver of the company, by the court of chancery of New Jersey, in February, 1877; that two days thereafter he was duly appointed by the supreme court of New York receiver of the property of the company situate within the state of New York; that such last appointment was in connection with and ancillary to his appointment as receiver by the court of chancery of New Jersey; and that, pursuant to his appointment as receiver by the chancellor of New Jersey, he operated said railroad during June, 1879. He admitted the killing of the intestate at South Amboy, New Jersey, and the existence of said next of kin, and the permission of the New York court to bring 'this action,' and denied the alleged negligence.

In October, 1879, the defendant, as a citizen of New Jersey, the plaintiffs being citizens of New York, removed the suit into this court, the state court making an order of removal. In January, 1882, the suit came on for trial in this court before a jury. The court, at the trial, allowed the plaintiffs to amend their complaint by inserting at the end thereof, immediately before the prayer for relief, an allegation that the statute of New Jersey in force at the time of the death of the intestate provided as follows, (setting it forth;) it being a statute giving, in case of the death of a person by neglect, where he would have had an action for damages for injury if he had lived, an action for damages to his personal representatives for the benefit of his next of kin, no limit to the amount of damages being specified. At the same time the defendant was allowed to amend his answer by inserting the order of the New York court granting leave, and alleging that no other leave to sue was ever granted to the plaintiffs. The leave was 'to bring an action in this court against said Francis S. Lathrop, receiver of the Central Railroad of New Jersey, acting as such within the jurisdiction of the court, for the alleged wrongful killing of said decedent through negligence and carelessness. ' The defendant was also allowed to amend his answer so as to admit permission to bring 'an action,' instead of 'this action.' At the trial, the order of leave made by the New York court, and the order of the New York court appointing the defendant receiver of the property of the company 'situate within the state of New York,' in connection with and ancillary to his receivership under his New Jersey appointment, and the fact that the company was a New Jersey corporation, and papers showing the receivership under the New Jersey appointment, were put in evidence, (the court having excluded the plaintiffs' offer to prove the facts stated in the complaint,) and the defendant moved the court to dismiss the complaint, on the grounds that, as to the defendant as a New Jersey receiver, the court had no jurisdiction of the suit; and that, as to the defendant as a New York receiver, the complaint contained no cause of action. The court decided that the complaint must be dismissed on those grounds, but no order or judgment to that effect has been entered. The plaintiffs now move to remand the cause to the state court on the ground that it 'does not really and substantially involve a dispute or controversy properly within the jurisdiction of this court. ' The question as to the propriety of the removal, or as to remanding the cause, was not presented at the trial.

The plaintiffs contend that as the defendant was sued as a receiver appointed by the New York court, by its leave, and in it, he must, though personally a citizen of New Jersey, be regarded, for the purposes of the removal, as a citizen of New York; that the leave granted by the New York court was to sue in that court its own officer; and that the suit was not brought against the New Jersey officer.

The defendant contends that the citizenship of the parties personally was different, and sufficient to warrant the removal; that the suit being brought against ...