Famous Realty v. Flota Mercante Grancolombiana, Civ. No. 9481.

• Citation: 81 F. Supp. 553
• Decision Date: 01 December 1948
• Docket Number: Civ. No. 9481.
• Parties: FAMOUS REALTY, Inc. v. FLOTA MERCANTE GRANCOLOMBIANA, S. A.
• Court: U.S. District Court — Eastern District of New York

81 F. Supp. 553

FAMOUS REALTY, Inc. v. FLOTA MERCANTE GRANCOLOMBIANA, S. A.

Civ. No. 9481.

United States District Court E. D. New York.

December 1, 1948.

Joseph S. Wohl, of Brooklyn, N. Y., for plaintiff-landlord.

Burlingham, Veeder, Clark & Hupper, of New York City, (Eugene Underwood, of New York City, of counsel) for defendant-tenant.

GALSTON, District Judge.

The motion is to remand this action to the Municipal Court of the City of New York, Borough of Brooklyn, First District.

The action or proceeding, it matters not, as will presently develop, which term is used, was begun in the Municipal Court by the service on the defendant on November 5, 1948 of a precept or summons and accompanying petition. Defendant's petition for removal was filed in this court on November 9, 1948 and is therefore timely.

From the petition for removal it appears that the action is of a civil nature, that the amount in dispute is in excess of $3,000, that the plaintiff is a corporation organized and existing under and by virtue of the laws of the State of New York and a citizen of the State, and that the defendant is a corporation organized and existing under and by virtue of the laws of the Republic of Colombia and is not a citizen or resident of the State of New York. The removal was pursuant to the provisions of the recently enacted Judicial Code, which became effective September 1, 1948, Title 28 U.S. C.A. § 1441 et seq.

Section 1441, subdivision (a), provides that except as otherwise enacted by Congress, "Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant * * * to the district court * * * for the district * * * embracing the place where such action is pending."

Sec. 1446 describes the procedure for removal; subdivision (a) states that a defendant desiring to remove shall file in the District Court a verified petition containing "a short and plain statement of the facts which entitled him * * * to removal, together with a copy of all process, pleadings * * * served upon him or them in such action." Subdivision (b) of the same section requires a petition for removal to be filed within twenty days after the commencement of the action.

First as to the nature of the action: the landlord's precept and petition show that the nature of the action is one in which the plaintiff is designated as the landlord, the defendant as the tenant; that the premises consist of a marginal wharf and certain structures lying between Adams Street Slip and Jay Street Slip, Brooklyn, New York, and the relief sought is possession of the premises by the landlord and payment of two months' rent plus additional rental of $26,422.73, which sums it is alleged were due under the terms of an agreement entered into between the parties on December 5, 1947.

Thus it appears that the nature of the landlord's claim is one for possession of the premises, and judgment for rent alleged to be due. Applying the test of the removal statute, it would appear that the action certainly is of a civil nature and one in which a District Court of the United States would have original...